Elks Investment Co. v. Jones
Decision Date | 02 June 1916 |
Docket Number | No. 17370.,17370. |
Citation | 187 S.W. 71 |
Parties | ELKS INVESTMENT CO. v. JONES et al. |
Court | Missouri Supreme Court |
Appeal from Circuit Court, Barry County; Carr McNatt, Judge.
Action by the Elks Investment Company against L. B. Jones and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
This is a suit by the owner upon a bond to secure the performance of a contract dated August 11, 1909, for the construction of a clubhouse for the plaintiff. The defendants are L. B. Jones and W. A. Bridges, the contractors and principals in the bond, and J. U. Vermillion, Leroy Jeffries, and W. C. Hathaway, their sureties in the bond. The petition was filed February 13, 1911, and states the execution of the contract to construct the clubhouse in Monett, Mo., furnishing at their own cost and expense the material therefor and doing all the work required by the plans and specifications, and to complete the building in accordance therewith by the 11th of December, 1909; if the completion was unreasonably delayed the damages therefor were to be deducted from the contract price, which was fixed at $9,300. That the bond sued on, which was attached to the contract and signed by all the defendants as such principals and sureties, was for $4,650, and "conditioned that in the event that said L. B. Jones and W. A. Bridges should well and truly perform said foregoing contract and should build and erect said clubhouse in every particular according to said contract and plans and specifications and should hold plaintiff, Elks Investment Company, harmless from all damages, actions, or causes of actions by reason of any and all materialmen or mechanic's liens, then said obligations should be void"; that plaintiff had fully complied with the contract on his part, but that the contractor had failed, neglected, and refused to complete the building according to the plans and specifications by the 11th day of December, 1909, and that plaintiff had been deprived of its use and occupancy up to ____ day of February, 1911, to plaintiff's damage in the sum of $1,000.
It also alleged as a breach of the bond: That the defendants had failed to hold the plaintiff harmless from liens for material and labor on account of which judgments had been obtained against the building as follows:
That plaintiff was compelled to pay attorneys' fees in said suits amounting to $50, all of which plaintiff had been forced to and did pay to save the building from sale.
The petition proceeded as follows:
Judgment was asked for the penalty and damages to be assessed at $3,665.14.
Jones & Bridges answered separately that the contract provided that the plaintiff should pay 75 per cent. of the cost of all labor and material in the building as the work progressed upon estimates to be furnished by the superintendent of the building, which payments it failed and refused to make; that it also provided that defendants should complete the building by December 11, 1909, unless prevented by conditions and circumstances over which the parties had no control; that the material ordered could not be obtained; that plaintiff failed to clear the lot on which the building was to be erected for some months after the date of the contract by which the contractors were without their fault and by fault of plaintiff prevented from constructing and completing the said building until February, 1911; and that plaintiff is not entitled to recover on account of the mechanics' liens for the reason that said liens were caused by the failure of plaintiff to pay for the labor and material in the course of construction of said building as provided in the contract.
The sureties filed an amended answer charging that the contract provided that the plaintiff should not make any alteration or changes in the plans and specifications except in manner and form stated in the answer, and that plaintiff should pay 75 per cent. of the cost of labor and material based on estimates made by the superintendent, and proceeded as follows:
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