Erfurth v. Stevenson

• Decision Date: 31 January 1903
• Parties: ERFURTH v. STEVENSON
• Court: Arkansas Supreme Court

72 S.W. 49

71 Ark. 199

ERFURTH v. STEVENSON

Supreme Court of Arkansas

January 31, 1903

Appeal from Sebastian Circuit Court, Fort Smith District STYLES T ROWE, Judge.

Reversed.

Judgment reversed.

Read & McDonough, for appellant.

The change in the contract released the surety. 61 S.W. 369; 65 Ark. 550; 66 Ark. 289; 22 S.W. 622; 24 Minn. 387; 59 Barb 319. An alteration which changes the legal effect of the instrument is material, and discharges the sureties. 76 Va 537; 29 Am. & Eng. Enc. Law 965, 977; 28 S.W. 439; 73 N.W. 524; 99 F. 299; 59 Mo.App. 44; 40 Mo.App. 213; 55 Mo.App. 427; 116 Mo. 179.

Hill & Brizzolara, for appellee.

The change was not one which materially effected the contract. 66 Ark. 287; Cf. 61 S.W. 369; 65 Ark. 550; 116 Mo. 179; s. c. 22 S.W. 622; 73 N.W. 524; 46 P. 402. The change was within the purview of appellant's contract, and did not release them as sureties. 52 N.W. 1104; 42 N.E. 669; 63 N.W. 17; 7 Mo.App. 283.

OPINION

BATTLE J.

On the 4th day of April, 1898, Erfurth & Seibert entered into a written contract with E. H. Stevenson, by which they agreed to erect and construct for him a two-story brick residence, with a stone foundation and roof covered with Oregon cedar shingles "except foundation, cut stone, brick work, plastering, painting, plumbing and trimming hardware" in a good and substantial and workmanlike manner; and Stevenson agreed to pay them therefor the sum of $ 2,670; and it was agreed that no sum exceeding seventy-five per cent, of the value of work done and materials furnished and used should at any time be paid to them before they fully complied with and performed their contract. A provision for alterations in the building was made in the contract as follows:

"Article 13. That the party of the first part, through his architect, may require alterations to be made in the construction, arrangement or finish of the work from that herein, and in said specifications, plans or drawings, expressed, without annulling or invalidating this agreement in any particular, and in case of any such alterations the increase or diminution of expense occasioned thereby shall be added to or taken from the contract price of the entire work; and that a description of the changes so to be made, together with the expense of making the same, shall be attached to this agreement before said changes are executed, or otherwise shall not be binding on said first party. And it is further agreed that, in case the parties hereto cannot agree as to the amount to be added to or deducted from the said contract price on account of the contemplated change, then and in such case the party of the first part shall have the right under this contract to have other than the second party (Erfurth & Seibert) execute such changes during the progress of the building and work aforesaid."

On the 4th of April, 1898, the same day on which the contract was executed, Erfurth & Seibert, as principals, and John Schaap and S. A. Wiliams, as sureties, executed a bond to E. H. Stevenson, and thereby bound themselves to him in the sum of $ 2,670; conditioned that, if Erfurth & Seibert should perform their contract with Stevenson, the same should be void.

On the 7th day of May, 1898, Stevenson and Erfurth & Seibert agreed in writing as to certain changes in the said building, as follows:

"May 7, 1898. It is hereby agreed that all roofs and gables shall be covered with 7 x 14 best quality black Bangor slate, with all hips connected and made tight (instead of being covered with Oregon cedar shingles as set out in the specifications. ) All slate shall be laid on heavy tar felt, and all sheathing shall be No. 1 com. M. D. with all defects cut out, thoroughly seasoned, close joint and double nailed at each heaving with 10d wire nails. All tin, galvanized iron and zinc work (conductor supports coppered) shall be made of 102 z copper instead of tin, galvanized iron and zinc as specified in specifications (except floor of balcony, which shall be of tin as specified) and all work and materials subject to the approval of the architect.

(Seal.)

"E. H. Stevenson, Party First Part.

(Seal.)

"Erfurth & Seibert, Party Second Part."

On the 9th day of September, 1899, Stevenson commenced this action against Erfurth & Seibert, Schaap and Williams, on their bond; and Schaap and Wiliams answered, and stated that they were sureties on the bond, and had been released from their obligations by the changes made in the original contract without their consent.

In the trial that followed it was proved that the changes in the contract were made without the consent of the sureties, and there was no evidence to the contrary, unless the original contract was evidence of such consent; and that they (the changes) were not within the contemplation of the parties at the time the original contract was entered into is shown by the testimony of Goddard, the architect who drew the plans and specifications for the building, and superintended the erection of the same. He testified as follows: "At the time we were receiving estimates on Dr. Stevenson's house for the construction of it, it was contemplated to use slate for the roof, but, owing to the fact that we knew, of course, it would cost some more to use slate, * * * Dr. Stevenson decided that we would make the specifications to read shingles, raised tin and galvanized iron; and asked some of the contractors--in fact all of them--to submit the amount extra it would cost to use slate and copper instead of shingles, tin and galvanized iron for the roof. Some of them did so, and some of them did not."

It was proved that Erfurth & Seibert drew orders on Stevenson the 9th and 10th days of February, 1899, for the amounts due for work done and materials furnished to complete the building according to the alterations made in the original contract, and that Schaap and Williams indorsed their approval upon the same. Goddard, the architect, testified that their approval was required because Stevenson had paid Erfurth & Seibert more than seventy-five per cent. of the value of the work done and materials furnished at the time the orders were drawn; and the sureties testified that they indorsed their approval because they were informed that Stevenson would not pay the orders without it.

Plaintiff recovered judgment, and the defendants appealed.

Were John Schaap and S. A. Williams, sureties on the bond of Erfurth for the performance of their contract to erect a building for E. H. Stevenson, discharged by the alteration of the contract?

In O'Neal v. Kelley, 65 Ark. 550, 47 S.W. 409, this court held that any material alteration in the contract for the performance of which a surety is bound, without his consent, discharges the surety, and that "this is so, even if the alteration be for the benefit of the surety; for, although the principals may change their contract to suit their pleasure or convenience, they cannot thus bind the surety."

In Miller-Jones Furniture Co. v. Fort Smith Ice & Cold Storage Co., 66 Ark. 287, 50 S.W. 508, one Wickshire contracted with the appellee to build for it a one-story brick house, and to complete the same on or before the 14th day of October, 1895. The contract contained the following stipulation: "It is further agreed that the said party of the second part may make any alterations deviations, additions or omissions from the aforesaid plans, specifications and drawings, or either of them, which they shall deem proper, and the said architect shall advise, without affecting or making void this contract; and in all such cases the architect shall value or appraise such alterations and...