Evans v. Graden

• Decision Date: 26 November 1894
• Citation: Evans v. Graden, 125 Mo. 72, 28 S.W. 439 (Mo. 1894)
• Parties: Evans, Administrator, Appellant, v. Graden
• Court: Missouri Supreme Court

28 S.W. 439

125 Mo. 72

Evans, Administrator, Appellant, v. Graden

Supreme Court of Missouri, First Division

November 26, 1894

Appeal from Platte Circuit Court.-- Hon. William S. Herndon, Judge.

Reversed and remanded.

George A. Lawrence and Jas. W. Coburn for appellant.

(1) Before the surety can be released because of a change of a contract there must have been some change so as to alter its identity.Warden v. Ryan,37 Mo.App. 466.(2) In Leavel v. Porter,52 Mo.App. 642, the contract provided for departures which, however, were to be made by the owner stating them in writing with the certificate of the architect indorsed thereon.This was not done and the court held that the surety was not released.In the same case it was held that doing extra work, or work not done in the manner provided in the contract, not delaying the work embraced in the contract nor increasing the difficulty or expense of the structure, would not release the sureties.(3) In Ryan v. Morton, 65 Texas, 258, cited in Warden v. Ryan,37 Mo.App. 467, approvingly, the contractor and owner agreed upon the addition of two galleries at a price not included in the original contract and it was held not to affect the sureties.(4) Where a person becomes surety for the performance of a building contract, and afterwards, without his knowledge, the builder consents to certain changes in the minor details of the work but without binding himself to conform to such changes, and without agreement as to the modification of the original contract, the changes are not such as to discharge the surety.Henricus v. Englert,17 N.Y.S. 235;Dorsey v. McGee,46 N.W. 1018;Moore v Fountain,8 S. Rep. 509.(5) The uncontradicted evidence of Byers was that three fourths of the work had been done before the payment of the $ 2,000, the last money paid to Rider & Son and that it was paid with the consent of Graden and the other sureties.All the payments did not aggregate seventy per cent. of the work done and materials furnished.(6) After the abandonment of the work by Rider & Son, Graden, the defendant, took charge of the uncompleted building and sold lumber and with the proceeds paid the workmen.His letters to Park show that he waived any defense he might have had on account of any overpayment to Rider & Son and also of any changes made in the work or contract.(7) The bond and contract were both on the same paper.Leaven v. Porter, 52 Mo. 643.

George W. Day and A. D. Burnes for respondent.

"Nothing can be clearer, both upon principle and authority than the doctrine that the liability of a surety is not to be extended, by implication, beyond the terms of his contract.To the extent and in the manner and under the circumstances pointed out in his obligation, he is bound, and no further.It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit.He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal."Per Story, judge, in Miller v. Stewart,9 Wheat. 680;Blair v. Ins. Co.,10 Mo. 560;Nolley v. County Court,11 Mo. 447;St. Louis v. Sickles,52 Mo. 122;State to use v. Boon,44 Mo. 254;Prior v. Kiso,81 Mo. 241;Beers v. Wolf,116 Mo. 179.Even though the change in the contract may be beneficial to the surety, yet he is discharged."Non hoec in foedera veni is an answer in the mouth of the surety from which the obligee can never extricate his case, however innocently or by whatever kind intentions to all parties, he may have been actuated."Bethune v. Dozier,10 Ga. 235;Rowan v. Mfg. Co.,33 Conn. 1;Warden v. Ryan,37 Mo.App. 466;Mackay v. Dodge,5 Ala. 388;Simonson v. Grant,36 Minn. 439.The time and manner of payment, as fixed by contract, for the performance of which one becomes bound as surety, are for the benefit of the surety, as well as the principals; and a departure from the mode prescribed by the contract, without the consent of the surety, releases him, for he is thereby deprived of the inducement which his principal would have to perform the contract.Taylor v. Jeter,23 Mo. 244;Bragg v. Shain,49 Cal. 131;Ryan v. Morton, 65 Texas, 258;Calvert v. Dock Co., 2 Keen, 638;Navigation Co. v. Rolt, 6 J. Scott(N. S.), 550, reported 95 Eng. Com. Law Repts.549.He who relies upon a waiver must show that it was made with knowledge of all the material facts.Dyas v. Hanson,14 Mo.App. 364.When a waiver is relied upon it must be pleaded.Ferneau v. Whitford,39 Mo.App. 311;Ehrlich v. Ins. Co.,103 Mo. 231;Lanitz v. King,93 Mo. 513;Bank v. Hatch,78 Mo. 13;Nichols v. Larkin,79 Mo. 264.An appellate court will not invade the province of the jury, nor interfere where there is any evidence to support the verdict.Reynolds v. Rogers,63 Mo. 17;Tuggle v. Railroad,62 Mo. 425;Kitchen v. Railroad,59 Mo. 514;Wilson v. Maxwell,57 Mo. 146;Peacock v. Nelson,50 Mo. 256;McCartney v. Ins. Co.,45 Mo.App. 373;Turner v. Gibbs, 50 Mo. 556.

OPINION

Black, P. J.

On the twenty-second day 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 September 1, 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 seventy 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: First, so that the front doorway was cut down and lowered three feet; second, so that the building was to be heated by a hot air furnace instead of stoves; and third, from a tar and gravel roof to a tin roof.

At the close of the evidence the court gave four instructions at the request of the plaintiff, ten at the request of the defendant, and of its own motion contributed nineteen more, in all covering some twenty 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 seventy per cent. of the value of the work done; and if Park, during the progress of the work, paid Rider & Son more than seventy 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 on 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 were going 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 September 1, 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 there was an agreement between Park and Rider & Son,...