Gato v. Warrington

• Decision Date: 18 March 1896
• Citation: 19 So. 883,37 Fla. 542
• Parties: GATO v. WARRINGTON et al.
• Court: Florida Supreme Court

19 So. 883

37 Fla. 542

GATO v. WARRINGTON et al.

Florida Supreme Court

March 18, 1896

Appeal from circuit court, Duval county; W. B. Young, Judge.

Action by G. H. Gato against David Warrington and James McClatchy. Judgment for defendants. Plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. The liability of a surety in not to be extended, by implication beyond the terms of his contract; and to the extent and in the manner pointed out in his undertaking he is bound, and no further.

2. A contract between a builder and a mechanic required the latter, in consideration of a specified sum of money, to erect, finish, and deliver, on a date mentioned, certain buildings, according to given plans and specifications; and the obligation of sureties was that the mechanic would fulfill in every particular the contract, and deliver the buildings at the time required, in a thorough, artisan, and perfect manner. Held, that this obligation did not impose the duty of indemnifying the builder against liens for work done and material furnished in the construction of the buildings.

3. A material alteration or departure from the obligation of sureties without their consent will have the effect to release them.

COUNSEL

Call & Adams, for appellant.

Walker L'Engle, for appellees. On the 25th of October, A. D. 1890, appellant and McClatchy entered into an agreement whereby the latter covenanted and agreed, for the consideration thereinafter expressed, to erect, finish, and deliver, on or before the 1st day of January, 1891, in true thorough, artisan, perfect, and substantial manner, certain buildings, according to plans and specifications attached and made part of the agreement.

Appellant on his part agreed, in consideration of the covenants and agreements being kept and performed by McClatchy, to pay the sum of $8,260, as follows, viz.: 'As the work progresses the said J. McClatchy is to submit his weekly pay rolls, duly signed and receipted; also, for such material as may be on the ground.'

The specifications and drawings were included in and made part of the agreement, and no extra work was to be charged unless a separate estimate in writing was submitted and signed by appellant. There was also a provision that the contractor should insure the buildings before each payment for the amount of the payment to be made, the policy not to expire until after the buildings were completed and accepted. McClatchy as principal, and Warrington and one Kernan as sureties, entered into a separate obligation, on the same date, whereby they acknowledged themselves held and bound unto appellant in the sum of $2,000, upon condition that McClatchy would fulfill in every particular the said contract for the erection of the buildings according to plans and specifications, and would deliver the same on or before the date mentioned in the contract, finished in a thorough artisan, perfect, and substantial manner.

The declaration sets out the terms of the agreement and obligation, and alleges that Kernan died before the commencement of the suit, and that McClatchy did not comply with the contract in this: that plaintiff (appellant here) was compelled to pay a much larger sum for the erection of the buildings than the contract price, to wit, the sum of $1,071.83, in order that there should be no lien upon the same for work done and material furnished for their construction; also, that McClatchy did not deliver to plaintiff the buildings on or before the day fixed in the contract for their delivery, and that said buildings were not erected, finished, and delivered in true, thorough, artisan perfect, and substantial manner, according to the plans and specifications mentioned, whereby an action had accrued to plaintiff to demand the sum of $2,000.

After appearance by McClatchy and Warrington, default was entered on rule day, on which plea should have been filed; but subsequently, on same day, Warrington filed a demurrer. The declaration was amended, but McClatchy made no further appearance.

The pleas of Warrington, on which issues were made up, allege, in substance: (1) That he did not, as surety on the said bond, promise, as alleged, to be responsible to plaintiff for any sum of money, and especially for the sum mentioned of $1,071.83, which should be paid out by plaintiff in order that there should be no liens upon said buildings for work done and material furnished for their construction; (2) that there is no provision in the contract whereby the said McClatchy bound himself to repay or refund to plaintiff any sum of money, and especially the sum of $1,071.83, in order to prevent the imposition of liens on said buildings for work done and materials furnished for their construction.

Plaintiff replied to the pleas, in substance, as follows, viz.: That Warrington ought not to be released from the payment of the sum of money demanded because he executed the bond which refers to the contract between plaintiff and McClatchy, and said bond was given to insure the faithful performance of said contract by McClatchy, and by the contract the latter was required to pay, and ought to have paid, for all work done and material furnished for the erection of the buildings, and to complete and deliver the same free from all liens, for the price mentioned in the contract, which he failed to do, but, on the contrary, left unpaid certain bills for work done and material furnished for the buildings, to a large amount, to wit, the sum of $1,071.83, whereby plaintiff was forced to pay the same in order to preserve his buildings from liens and forced sale thereunder. Wherefore...