Dorsey v. McGee
| Decision Date | 05 November 1890 |
| Citation | 46 N.W. 1018,30 Neb. 657 |
| Parties | C. G. DORSEY ET AL. v. J. L. MCGEE |
| Court | Nebraska Supreme Court |
ERROR to the district court for Gage county. Tried below before BROADY, J.
AFFIRMED.
Hazlett & Bates, for plaintiffs in error, cited, contending that the sureties were released by variations in the plans: Miller v. Stewart, 9 Wheat. [U. S.], 680; Polak v. Everett L. R. 1 Q. B. D. [Eng.], 669; U. S. v. Hillegas, 3 Wash. C. C. [U. S.], 75; Taylor v. Johnson, 17 Ga. 521; Grant v. Smith, 46 N.Y. 93; Brigham v Wentworth, 11 Cush. [Mass.], 123; St. Albans Bank v Dillon, 30 Vt. 122; Zimmerman v. Judah, 13 Ind. 286; Judah v. Zimmerman, 22 Id., 388; Bacon v. Chesney, 1 Stark. [Eng.], 192; Dobbin v. Bradley, 17 Wend. [N. Y.], 425; Walrath v. Thompson, 6 Hill [N. Y.], 540; Fowler v. Brooks, 13 N. H., 240; Brandt, Suretyship, secs. 338, 387; Bethune v. Dozier, 10 Ga. 235; Rowan v. Mfg. Co., 33 Conn. 1; Chitty, Contracts [11th Ed.], 776, 777; Ind. Dist. of Mason City v. Reichard, 50 Iowa 99; Cunningham v. Wrenn, 23 Ill. 64; Simonson v. Grant, 36 Minn. 439; DeColyar, Guaranties, P. & S., 389; Id., 394-95, 96, and cases cited: Leeds v. Dunn, 10 N.Y. 469; Gardiner v. Harback, 21 Ill. 129; Barker v. Scudder, 56 Mo. 272; Whitcher v. Hall, 5 B. & C. [Eng.], 269; Theobold, Prin. & Sur., 119; Weir Plow Co. v. Walmsley, 11 N. E. Rep., 232, and cases cited in note; Lucas Co. v. Roberts, 49 Iowa 159; Taylor v. Jeter, 23 Mo. 244. Also by changes in regard to terms of payment: Gen'l Steam Nav. Co. v. Rolt, 6 C. B. [Eng.], 550; Calvert v. London Dock Co., 2 Keene [Eng.], 638; Bragg v. Shain, 49 Cal. 131; Bacon v. Chesney, 1 Stark. [Eng.], 152; Benjamin v. Hillard, 23 HOW [U. S.], 149; Brandt Suretyship, sec. 345, and cases cited: Farmers Bank v. Evans, 4 Barb. [N. Y.], 490; Birkhead v. Brown, 5 Hill [N. Y.], 634. As to the sufficiency of the answer: Burr v. Boyer, 2 Neb. 267; Rathburn v. R. Co., 16 Id., 443; Herdman v. Marshall, 17 Id., 257; Olcott v. Carroll, 39 N.Y. 436; Humphries v. Spafford, 14 Neb. 488; Mills v. Miller, 3 Id., 95; Wilson v. Macklin, 7 Id., 50; Catron v. Shepherd, 8 Id., 318; Singer Mfg. Co. v. Doggett, 16 Id., 611; Evarts v. Smucker, 19 Id., 43; Brown v. Rogers, 20 Id., 548; Klosterman v. Olcott, 25 Id., 382; Homan v. Steele, 18 Id., 659; Hale v. Wigton, 20 Id., 83; Curtis v. Cutler, 7 Id., 317. As to the instructions: Simonson v. Thori, 31 N. W. Rep., 861; Bacon v. Chesney, supra.
Pemberton & Bush, contra, cited, as to variation of plans and terms of payment: Irwin v. Opp, 3 N.E. [Ind.], 650; Lloyd, Buildings, sec. 54; Strawbridge v. R. Co., 74 Am. Dec., 545, and note; Hanauer v. Gray, 99 Id., 226, and note; McKecknie v. Ward, 17 Am. Rep., 281; Benjamin v. Hillard, 23 HOW [U. S.], 165, 166; Brandt, Suretyship and Guaranty, 467. As to the pleadings: Curtis v. Cutler, 7 Neb. 317. As to the instructions: Russell v. Rosenbaum, 24 Neb. 769, 772; Weir v. R. Co., 19 Id., 212; Smith v. Brady, 72 Am. Dec., 442.
This action was brought in the district court of Gage county by the defendant in error against Sweet & Wilson, as principals, and the plaintiffs in error, as sureties, on a bond given for the faithful performance of a certain contract for the erection of a dwelling house and barn in the city of Beatrice, entered into between J. L. McGee and Sweet & Wilson, who were contractors and builders, at Beatrice, as follows:
The amended petition alleged a number of breaches of the condition of said bond, by reason of which plaintiff was damaged in the sum of $ 2,350, and asked judgment against Sweet & Wilson and C. G. Dorsey and J. B. Weston in the sum of $ 2,000.
To the amended petition, the plaintiffs in error, Dorsey and Weston, filed an answer admitting the execution of the bond as sureties, but allege as a defense thereto that after the execution and delivery of said bond the defendants Sweet & Wilson and the plaintiffs, without the knowledge or consent of these defendants, changed the contract plans and specifications referred to in said bond, in material parts thereof, and erected said buildings mentioned in said contract in a different manner than that mentioned and agreed to be built in said original contract, and changed the plans and specifications for the erection of said buildings from the original contract plans and specifications as referred to in said bond, all of which was done by plaintiff and defendants Sweet & Wilson after the execution and delivery of said bond, without the knowledge or consent of the defendants Dorsey and Weston.
To this answer a reply consisting of a general denial was filed by plaintiff. A trial was had by a jury, who found in favor of plaintiff and against all of the defendants in the sum of $ 1,551.16.
Separate motions for a new trial were filed by the defendants Sweet & Wilson and the defendants Dorsey and Weston, which were overruled by the court and judgment rendered against the defendants Sweet & Wilson as principals and the defendants Dorsey and Weston as sureties, to reverse which ruling and judgment, and for a new trial, the defendants Dorsey and Weston prosecute a writ of error to this court.
Counsel for plaintiffs in error, in the brief, do not present the errors upon which they rely, in the order in which they are stated in the petition in error, nor is it easy, in all cases, in following the argument, to apply it to the specific error intended. But I will take up the points as they are presented in the brief, and as no point is argued which is not stated in the petition in error, with more or less accuracy, I will spend but little time in endeavoring to point out their special application.
The first point of the argument is directed to the insufficiency of the evidence to sustain the verdict and judgment. In support of this proposition evidence is cited from the bill of exceptions tending to prove that after the execution and delivery of the bond upon which the plaintiffs in error were sued, the plaintiff, and Sweet & Wilson, his contractors, changed the contract plans and specifications referred to, and mentioned in the bond, in material points, without the knowledge or consent of the sureties, plaintiffs in error, and thereby released them from the obligation of the said bond. The first alteration to which attention is called is in the specifications for the plastering, where the figure "3" was substituted for the figure "2," as fixing the number of coats of plastering for the building. The two defendants, C. A. Sweet and C. S. Wilson, testified that this alteration, which is plain and palpable upon the face of the specifications, was made by the plaintiff some week or ten days after the execution and delivery of the bond by plaintiffs in error, while the plaintiff and his daughter, Miss Minnie McGee, testified that the alteration was made at the time of the execution of the contract between the plaintiff and the defendants Sweet & Wilson; and as the verdict was for the plaintiff, we must, for the purposes of this review, consider the specifications as introduced in evidence, as the original specifications.
The next change in the plans and specifications to which attention is called is that the plans were drawn for a building facing north and east, and that by direction of the plaintiff the house was actually built facing south and west. That this change was made is clearly shown by the evidence, but it does not appear that any change was made on the face of the plans or specifications, nor does it appear that any change in the drawings or written specifications was necessary for that purpose. The logic of the position of the plaintiffs in error on this point is, that whereas Sweet & Wilson entered into a contract with the plaintiff to build a certain house according to plans and specifications, drawn by Mendelssohn and Fisher, of Omaha, and the plaintiffs in error entered into a penal bond conditioned that they would build that identical house, and, by direction of the plaintiff, they did not build that identical house, plaintiffs in error were thereby released from the obligation of their bond, and cannot be held for the failure of said Sweet & Wilson to build another and different house. The turning point is, Did the contemplated building, by reason of the premises, lose its identity? This question must be answered in the negative.
The other changes complained of, are, "An extra...
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