Evans v. Graden

• Decision Date: 26 November 1894
• Citation: 28 S.W. 439,125 Mo. 72
• Parties: EVANS v. GRADEN.
• Court: Missouri Supreme Court

28 S.W. 439

125 Mo. 72

EVANS v. GRADEN.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

CONTRACTOR'S BOND — RELEASE OF SURETIES — OVERPAYMENTS — CHANGE OF PLANS.

1. Payments by the owner of a building to a contractor thereon in excess of the percentage provided for in the contract, and without the consent of the sureties on the contractor's bond, release the sureties.

2. A change in such a contract, requiring the building to be heated by steam instead of stoves, or requiring a gravel instead of a tin roof, releases the surety also.

3. It is error to leave the construction of a written contract to the jury.

4. An instruction not supported by any evidence is ground for reversal.

Appeal from circuit court, Platte county; William S. Herndon, Judge.

Action by Joseph B. Evans, administrator of George S. Parks, against Samuel H. Graden. There was a judgment for defendant, and plaintiff appeals. Reversed.

J. W. Coburn and Geo. A. Lawrence, for appellant. Geo. W. Day and A. D. Burnes, for respondent.

BLACK, C. J.

On the 22d of May, 1889, Col. George S. Park and James Rider & Son entered into a written contract whereby Rider & Son agreed to furnish all the material and erect for Park a building at Parkville, in this state, for the use of Park College. The contract provides that the building shall be a frame structure, and shall be erected according to specifications prepared by Mr. Hogg, and certain other specifications prepared by Mr. Park. Park agreed to pay Rider & Son $5,800, Rider & Son "not drawing at any time over seventy per cent. of the work done; the whole work to be completed" by October 1, 1889. On the same day Rider & Son gave bond to secure the performance of the contract, with the defendant, Graden, and others as sureties. Rider & Son abandoned the work on 1st September, 1889, so that Park was obliged to complete the building himself. The amount paid by him to Rider & Son and for completing the building exceeds the contract price some $1,408. Park died, and the plaintiff, as his administrator, brought this suit against the defendant surety on the bond to recover the last-named sum. He claims other damages for other alleged breaches of the contract, but no question is made in this court over the other alleged breaches. The defendant, by his answer, admits the execution of the contract and bond, and then follows a general denial. For a further defense he sets up the same contract pleaded by the plaintiff, and states facts to the effect that Park from time to time paid Rider & Son more than 70 per cent. of the value of the work done. For a further affirmative defense he says Park and Rider & Son, without his consent, changed the contract as set forth in the specifications, in these several particulars, namely: (1) So that the front doorway was cut down and lowered three feet; (2) so that the building was to be heated by a hot-air furnace instead of stoves; (3) and from a tar and gravel roof to a tin roof. At the close of the evidence the court gave 4 instructions at the request of the plaintiff, 10 at the request of the defendant, and of its own motion contributed 19 more, in all covering some 20 pages of printed matter. Thus enlightened as to the law, the jury found for the defendant.

1. The liability of a surety is not to be extended beyond the terms of his contract. He is bound to the extent of his contract, but no further. He is also entitled to the benefit of the securities taken by the creditor from the principal debtor. These principles of law are applicable to sureties on these bonds, given by contractors to secure the performance of their contracts for the erection of buildings. The defendant, as a surety, has a right to stand upon the agreement that Park would not pay Rider & Son, during the progress of the work, more than 70 per cent. of the value of the work done; and if Park, during the progress of the work, paid Rider & Son more than 70 per cent. of the value of the work done, without the consent of the sureties, he thereby discharged the defendant. Taylor v. Jeter, 23 Mo. 244; Ryan v. Morton, 65 Tex. 258; Bragg v. Shain, 49 Cal. 131. If the defendant surety consented to the overpayments, if any there were, then he is not discharged. These principles of law are set forth in the instructions given, and we see no objection to them, so far as they relate to this branch of the case.

Mr. Byers, agent for Park, and a witness for the plaintiff, testified in direct and on cross examination to the following effect: That he paid Rider & Son $500 at a time until he paid them $1,500, when some misunderstanding arose, and he refused to pay more; that James Rider, the defendant, Graden, and another surety by the name of Paul, came to see him, and upon their assurance that Rider & Son would go on with the work he paid Rider another $500; that he paid on vouchers for material some $1,200 in addition thereto. We understand these payments were all made prior to the 1st September, 1889, the date at which Rider & Son abandoned the work. This witness says the framework, roof, and a large part of the plastering had been completed at that time, and he thinks the entire work was about three-fourths performed. There was some other evidence having a little bearing on the same subject. We think this evidence made a case for the jury on the question whether Park made overpayments and the question whether defendant gave his consent thereto.

2. Some of the instructions informed the jury that if...