Hedrick v. Robbins

• Decision Date: 13 March 1903
• Docket Number: 3,968
• Citation: Hedrick v. Robbins, 30 Ind. App. 595, 66 N. E. 704 (Ind. App. 1903)
• Parties: HEDRICK v. ROBBINS
• Court: Indiana Appellate Court

66 N.E. 704

30 Ind.App. 595

HEDRICK v. ROBBINS

No. 3,968

Court of Appeals of Indiana

March 13, 1903

From Superior Court of Marion County, J. L. McMaster, Judge.

Action by Lulie W. Robbins against John Moon and George W. Hedrick on a bond securing the performance of a building contract.From a judgment for plaintiff, George W. Hedrick, appeals.

Affirmed.

W. E Bailey and J. M. Bailey, for appellant.

A. F Denny, for appellee.

OPINION

COMSTOCK, J.

Appellee brought this action upon a builder's bond against John Moon as principal and George W. Hedrick, appellant, as surety.A verdict was returned and a judgment rendered thereon in favor of the appellee for $ 373.35.Moon refused to join in the appeal.Appellant Hedrick assigns as error the action of the court in sustaining demurrers to the second and third paragraphs of his answer and in overruling the motion for a new trial.

The complaint avers that John Moon entered into a contract with appellee to finish, under the direction and to the satisfaction of Homer V. Place, architect, all the work included in a two-story frame residence agreeably to drawings and specifications made by said architect and signed by the parties aforesaid, and agreeably to the dimensions in said contract, including all the labor and material incident thereto; that the building was to be completed within a time stated, and in default thereof the contractor was to pay to appellee $ 1.50 for each day after the 1st day of September 1897, as liquidated damages.Appellee agreed to pay for the work and materials $ 3,720 in installments, according to such estimates as the said architect should make; final payment to be made within sixty days after the contract had been completely performed.The contract further provided that in the event there should be any claim for material or labor after all payments should be made by said owner to said contractor for such performance, that the said contractor should refund to the owner all the moneys that the latter should have been compelled to pay in discharge of any liens on the premises aforesaid, made obligatory in consequence of said contractor's default.It is further alleged that the contractor did not keep the said residence free from liens and claims chargeable against said contractor, and that the said contractor suffered and permitted lumber and other materials, furnished by various persons named, used in said building to remain unpaid for to the amount of $ 327, and gas-pipe and gas fittings to the amount of $ 40, and hardware and plasterer's and mason's materials to the amount of $ 85, which amounts the plaintiff was obliged to pay in order to prevent expenses of foreclosure of mechanic's liens.It is alleged that notwithstanding the appellee performed her part of the contract, and paid the full amount she had agreed to pay, $ 3,720, on estimates made and furnished by the architect, within the time and in the manner specified, said Moon failed to perform his part of the agreement.Copies of the contract and bond are made a part of the complaint.

Appellant Hedrick answered in three paragraphs, the first being a general denial.In the second paragraph he admits the execution of the contract entered into between plaintiff and defendant Moon, and the execution of the bond as alleged in the complaint, but avers that the plaintiff violated her contract, in this, to wit, that the plans and specifications were so changed that an entirely different house was constructed from that designated in the original plans and specifications which formed a part of the contract when the defendant signed said bond.The changes are not specified.The answer states that the plans and specifications were in the possession of the plaintiff, and that he was unable to designate the various changes.It is further alleged that the contract was broken by the plaintiff and Moon in this: that the time of the...