Harris v. Taylor
| Decision Date | 14 June 1910 |
| Parties | BERNEY HARRIS, Appellant, v. E. P. TAYLOR, E. R. DARLINGTON and JOHN M. SELLERS, Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
Judgment affirmed.
David Goldsmith and Bernard Greensfelder for appellant.
The provision of the contract that all payments should be made upon certificates of the architect did not purport to be, and could not reasonably have been intended as, prohibitive of payments without such certificates. Gillis v. Care, 177 Mass. 589; Smith v. Molleson, 148 N.Y. 250; Fuller v. Doyle, 87 F. 693; Allen v. W. S Co., 93 S.W. 44; 30 Am. and Eng. Ency. Law (2 Ed.), p 1246; Blether v. Blake, 44 Cal. 120.
Rassieur, Schnurmacher & Rassieur for respondents, Darlington and Sellers.
When the owner and contractor departed from the requirements of the contract and arranged for a partial payment, on account of the final installment payable under the contract, before the final installment was due or before the architects had issued a written certificate to the effect that this final installment had become due, the sureties were thereby released. Taylor v. Jeter, 23 Mo. 244; Evans v. Graden, 125 Mo. 72; Bowman v. Heating Co., 80 Mo.App. 628; Burnes Estate v. Fidelity Co., 96 Mo.App. 467; Simonson v. Grant, 36 Minn. 439; Bragg v. Shain, 49 Cal. 131; Ryan v. Morton, 65 Tex. 258; Cowdery v. Hahn, 105 Wis. 455; Wehrung v. Denham, 42 Ore. 386; Welch v. Hubschmitt Co., 61 N.J. L. 57; Truckee Lodge v. Wood, 14 Nev. 293; Opera House Co. v. Miller, 16 Nev. 327; Peters v. Mackay, 20 Wash. 172; Backus v. Archer, 109 Mich. 666; Bell v. Paul, 35 Neb. 240; St. Mary's College v. Meagher, 11 S.W. 608.
--This is a suit on a bond against a building contractor, as principal, and his sureties. The finding and judgment were for the plaintiff against the principal but for the defendant sureties. From this judgment discharging the sureties plaintiff prosecutes the appeal.
It appears plaintiff and defendant Taylor, who is principal in the bond, entered into a written contract whereby Taylor agreed to furnish materials and construct a building for plaintiff in accordance with plans and specifications therein mentioned. Contemporaneously with this contract, and for the same consideration, defendant Taylor executed to plaintiff the building bond sued upon, for the faithful discharge of the obligation imposed upon him by the building contract. Defendants Darlington and Sellers are sureties on this bond. Among the duties assumed by the contractor it was for him to discharge all accounts that might become liens upon the property, and the bond assures the performance of this obligation. Defendant Taylor, the contractor, completed the building and gave possession thereof to plaintiff but it seems failed to discharge all of the bills for materials. A mechanic's lien was established against the property for the amount of $ 1001.59, together with costs. The breach of the bond alleged and relied upon for a recovery relates to this matter. By this suit, plaintiff seeks to recover from Taylor, the contractor, and Darlington and Sellers, the sureties on the bond, the amount he was required to pay because of the mechanic's lien established against his property. The matter stands confessed by defendant Taylor, the contractor and principal in the bond, but defendants Darlington and Sellers, the sureties, affirmatively plead that they are discharged because of the fact that plaintiff, the obligee in the bond, voluntarily released a security in his hands which inured to their benefit. The building contract, in so far as relevant, is, of course, parcel of the undertaking assumed in the bond and must be considered therewith. By this contract, it was agreed plaintiff should pay the contractor $ 4525 for the building complete and that this amount was to be paid in instalments as therein stipulated. No payments, however, were to be made except upon a written certificate of the architects to the effect that such payments had become due. The final instalment was payable by the terms of the contract when the building was completed and accepted by the architects and was to be in the amount of $ 1200. By the express terms of the contract, this instalment of $ 1200 was not due until the building was completed and accepted by the architects, but it was stipulated that it should be made within ten days after the contract was fulfilled. By other provisions of the contract, it was stipulated that plaintiff, owner of the premises, might retain out of any payment then due, or thereafter to become due, an amount sufficient to completely indemnify him against any lien which might thereafter be established against the property. This particular stipulation of the contract does not in terms enjoin the duty on the owner to retain an amount sufficient to discharge any threatened lien, but fully authorizes him to do so if there be evidence of any lien, for which, if established, the premises may become liable and which is chargeable to the contractor. The particular provision of the contract with respect to when the final payment of $ 1200 was due and upon what condition it should be paid to the contractor by plaintiff is as follows:
It appears that this final payment of $ 1200 was not paid to the contractor by plaintiff in one sum on a written certificate of the architects to the effect that it had become due, but, on the contrary, it was divided into two parts. A day or two before the building was finally completed, plaintiff paid $ 300 of this amount to defendant contractor, on a mere written order of the architects without any certificate whatever to the effect that any amount was then due. Indeed, the payment was treated as on account and is so stated. The remainder of the final payments stipulated for was paid a day or two after the building was completed, on a written order of the architect but without any certificate whatever that such payment had become due. The court declared as a matter of law that by thus deviating from the terms of the contract in making the final payment in a manner different from that enjoined by its stipulations, plaintiff had voluntarily discharged the sureties from their obligation.
The argument for plaintiff is, that at the utmost such payments without...
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