Empire State Sur. Co. v. Lindenmeier

• Decision Date: 07 April 1913
• Citation: 131 P. 437,54 Colo. 497
• Parties: EMPIRE STATE SURETY CO. v. LINDENMEIER et al.
• Court: Colorado Supreme Court

131 P. 437

54 Colo. 497

EMPIRE STATE SURETY CO. v. LINDENMEIER et al.

Supreme Court of Colorado

April 7, 1913

Error to District Court, Larimer County; Neil F. Graham, Judge.

Action by William Lindenmeier and others against the Empire State Surety Company. There was a judgment for plaintiffs, and defendant brings error. Modified and affirmed.

Murray & Ingersoll, of Denver, for plaintiff in error.

J. F Farrar, of Denver, for defendants in error.

SCOTT J.

The defendants in error on the 11th day of May, 1907, and who were at that time the owners of certain lots and buildings in the city of Ft. Collins, entered into a written contract with the Cole-Potter Construction Company, a corporation, for the construction of a theater building on the said premises. Under the contract, the construction company was to provide all the materials and perform all the work to be performed under the contract and specified therein. The work and material were to be in accord with the plans and specifications of the architect, E. H. Moorman, named in the agreement, and which plans and specifications were declared to be a part of the contract. But it was expressly agreed 'It is further understood and agreed by the parties hereto, that any and all drawings and specifications prepared for the purpose of this contract by the said architect are and remain his property, and that all charges for the use of the same, and for the services of said architect, are to be paid by the said owner.' The contract price was fixed at the sum of $10,125, and the work performed and materials furnished were to be under the direction of the architect who was to furnish monthly estimates, and the owners were to deduct and retain 15 per cent. of these until the building was completed. As a condition of the signing of the contract, a bond in the sum of $5,000 was required, and such bond was furnished by the construction company, with the plaintiff in error as surety. The present suit is upon such bond, and judgment was rendered in favor of the defendants in error in a sum equal to the penalty of the bond, $5,000, with interest in the sum of $703.35, the same being computed from the date of the foreclosure of certain mechanics' liens upon the property, which in amounts aggregated a total in excess of the present judgment. It appears that the construction company defaulted in its contract before the completion of the building, and also that it had not paid for certain materials furnished for use in the building, resulting in the filing and foreclosure of the liens above referred to.

The only errors complained of and discussed in the briefs, and which we are therefore justified in considering, are (a) the admission of oral testimony upon the hearing concerning the plans and specifications referred to in the original contract, the original and no copy of which could be produced at the trial; (b) error of the court in the allowance of the $703.35, interest; and (c) the rendition of judgment without proof of the payment of the lien judgments.

In regard to the first contention, it will be noticed that the plans and specifications were, under the contract, to be and remain the property of the architect. It seems, also, that no copy of these were recorded with or as a part of the contract, and also that the original nor a copy was attached to the contract. The architect testifies concerning the disposition and loss of the plans and specifications as follows: 'I did have the original plans and specifications of that building, but I can't find them. I made a search for them very carefully. Q. Who had these plans and specifications? A. The original drawings are always found on file or supposed to be on file in the architect's office. There were several sets of blue prints made, and they were brought to Collins and left on the work. The Cole-Potter Company had one or two sets, and both of the owners had a set. Q. You are unable to find any set of these plans and specification? A. No copy, not even a blue print. Q. You can find nothing? A. Not a thing. No claim was ever made upon me by the Cole-Potter Construction Company for any extension of time upon the contract. If I remember correctly, this work should have been completed by the Cole-Potter Construction Company under the terms of the contract, September 14, 1907.'

W. E Aiken, one of the plaintiffs, testifies as follows: 'I am one of the plaintiffs in this action. I haven't a set of the plans and specifications for the erection of the Orpheum Theater as prepared by Moorman, architect. I have made a search for them. I do not know where there is a set. I don't know of one being in existence at this time. I had a set. Mr. Moorman delivered it to me. Q. What did you do with your set? Did you give them to anybody? A. No, sir; I think the Cole-Potter Construction company had them to use some of the time. I don't know where it is now. I have made an examination for the purpose of finding them and could not.'

William Lindenmeier, Jr., another of the plaintiffs, testified concerning the mattel in the following language: 'I conducted the business for myself and my father so far as we were concerned in this matter. We had a set of plans and specifications between us. One set between us. I don't know where that set is now. It is not in my father's possession. Q. How do you know it is not in your possession? A. At the time this lien case came up we searched every place around the store and around home, and could not find it. I don't know whether there is a set in existence at this time. I don't know what became of our set. Q. Did you give them to anybody? A. I couldn't say where they are, but the probabilities are that the Cole-Potter Construction Company had them.' Cole, president of the construction company, conducted the business for it, and he left the country when he abandoned the contract about October 12, 1907, and his whereabouts was unknown.

It is contended that the plans and specifications were by the terms of the agreement made a part of it, and that the bond was conditioned upon the performance of the contract as a whole, and therefore the plans and specifications must be proved with the same degree of strictness as those parts of the contract and the bond, which are material to the determination of the cause. There does not appear to have ever been any question between the owners of the property and the construction company involving the plans and specifications as such, and neither is there any dispute or contention between the parties to this suit in that regard. In fact, the appellants introduced no testimony upon the trial of this cause at all except a letter between counsel, but for what purpose it does not appear, as it seems to be wholly foreign to any question involved.

Counsel cite many authorities in support of their contention, but these are not applicable here. The rule of this court in this respect seems to be: 'That a particular instrument existed is the most material inquiry; the fact of its existence and the contents of it are matters to be tried by the jury; the loss of it must be made out to the satisfaction of the court. The law exacts nothing unreasonable in such a case. If parol proof of the loss establishes the fact with reasonable certainty, that is sufficient. No precise rule can be safely laid down upon this subject, further than this: That diligent search and inquiry should be made of those places or persons in whose custody the law presumes the instrument to be.' Hobson v. Porter, 2 Colo. 28; Londoner v. Stewart, 3 Colo. 47; Hittson v. Davenport, 4 Colo. 169. The law does not, however, require direct and positive evidence of the loss or destruction of the document, but requires only such evidence as will raise a reasonable inference of loss or destruction. 17 Cyc. 543.

But there is no contention here that loss by reason of the contractor's default was occasioned by failure in any respect upon the part of the contractors to comply with the plans and specifications, but only because the building was not completed within the time agreed in the contract otherwise provided, and because of failure to pay for the materials furnished, as therein agreed. Besides, in the first paragraph of the contract it is provided: 'This does not include any work or material in front of entrance of foyer as shown on the drawings and described in the specifications prepared by E. H. Moorman, architect, which drawings and specifications are identified by the signatures of the parties hereto, and become hereby a part of this contract.' This identification by the signatures of the parties, when taken in connection with the testimony of the architect above recited, would clearly indicate that the plans and specifications were not to attach to the contract though to be construed as a part of it, but were to remain with and as the property of the architect. Indeed, no copies appear to have been made except blue prints unidentified, and for use in construction, and therefore the architect was in fact the only person who ever had possession or charge of them and his testimony as to loss of such plans seems to be satisfactory. While it appears that the owners subsequently entered into another contract for the improvement of certain store buildings in front of the opera house, yet the testimony is clear and not disputed that no claim is made in this suit for loss occurring by reason, or on account of, such subsequent contract, or in the making of such improvements. Indeed, the testimony referred to as being improperly admitted refers only in an inferential way to the plans and specifications, and the cause could be as well determined, if there never had been any specific plans and specifications. There was no error in...