Henricus v. Englert

• Decision Date: 22 January 1892
• Citation: Henricus v. Englert, 17 N.Y.S. 235 (N.Y. Super Ct. 1892)
• Parties: Henricus et al. v. Englert
• Court: Superior Court of New York

17 N.Y.S. 235

Henricus et al. v. Englert

Supreme Court of New York, General Term, Fifth Department

January 22, 1892

Appeal from judgment on report of referee.

Action by Charles F. Henricus and another against Charles Englert to recover of the defendant as surety on a bond for the faithful performance of a building contract.There was judgment for defendant, and plaintiffs appeal.Affirmed.

Judgment affirmed.

Turk & Barnum, for appellants.

W. E Werner, for respondent.

Argued before Dwight, P. J., and Macomber and Lewis, JJ. All concur

OPINION

Macomber, J.

The plaintiffs were house-builders, and carried on their business in their own names, as agents for their wives, respectively.As such agents, they entered into a contract with the village of Brockport, on the 15th day of September, 1884, for the building of a town-hall and fire department building for that village, for which they were to receive the sum of $ 9,700.They, by contract with one Vogel, sublet the carpenter work for such building for the sum of $ 4,400.A bond for the faithful performance of Vogel's contract, upon which this defendant was surety, was conditioned that Vogel should perform all of the obligations entered into with the plaintiffs for the erection of this building, "agreeable to the plans, and in perfect keeping with the revised carpenter specifications prepared for the same by H. B. Gleason, architect."This action is brought to recover damages of this surety, upon the ground that Vogel did not perform in all respects the agreement which he had entered into with the plaintiffs.

The learned referee has found that the specifications made by the architect were departed from in some particulars by the consent of the plaintiffs, of Vogel, and of the village of Brockport, and he has given in detail the particulars thereof.It is not deemed needful to an understanding of this case to state such variations in detail.It suffices to say that some of them made the expenditure of Vogel larger in amount than the original specifications, and some of them reduced such expenditures.The total sum which the referee has found that the village of Brockport has suffered by all of the variations is $ 550.It is not specifically found that this sum includes the variations made by the plaintiffs themselves in the mason-work, but such must be deemed to be the legal effect of the agreement of the plaintiffs and the village of Brockport, hereinafter adverted to.This sum was agreed upon by the village authorities and the plaintiffs.That the plaintiffs themselves consented to such alterations can admit of no reasonable doubt from the evidence.Indeed some of the changes from the architect's specifications relating to the masonwork were made by them.The learned referee has found as a fact that the changes and alterations from the original plans and specifications were material alterations in the contract for the performance of which the bond in question was given, and that such alterations were made without the consent of the defendant; and he finds as a conclusion of law that for this reason the defendant is discharged from liability.It is extremely doubtful whether the facts disclosed in this case warrant the legal conclusion arrived at by the referee.The contract of this surety must be construed like all other contracts, so as to give effect to the intention of the parties.That intention must be gathered from, and in some respects controlled by, the nature of the contract entered into; and it must be interpreted in the light of the circumstances attending the execution of the instrument.When the meaning...