Hinton v. Stanton
| Citation | 165 S.W. 299,112 Ark. 207 |
| Parties | HINTON v. STANTON |
| Decision Date | 23 March 1914 |
| Court | Supreme Court of Arkansas |
Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed.
STATEMENT BY THE COURT.
Appellant was the plaintiff below, and alleged in her complaint that she entered into a contract with G. W. Norris, a contractor on the 8th day of January, 1912, whereby he agreed to build her a residence. It was alleged that appellee became surety for Norris upon the bond given by him for the performance of his contract. That under the terms of this contract Norris agreed to build the house for the sum of $ 3,165. Of this sum, $ 193 was for extra work, which was later agreed to by the parties, and which changes were duly ordered in writing by the architect. The original contract price was $ 2,972 and there was paid Norris the sum of $ 1,950, after receipt of which sum he abandoned the contract and plaintiff was compelled to re-let the contract and to have said building finished by other contractors. That, according to the certificate of the architect, the plaintiff, by reason of the default of Norris, in the performance of his contract, was required to pay the sum of $ 1,591.63 in excess of the $ 3,165. The appellee, who was the defendant below acknowledged his engagement as surety on the contractor's bond, but defended upon the ground that he was released by the act of the principal in making certain changes in the contract without his consent. He contends that in making those changes the principal set up a new contract and abrogated the one upon which he was surety.
Appellant acknowledges making the changes complained of, but pleads the consent of the surety by virtue of certain terms of the contract, contending that the changes made were consented to in advance by the surety, and appellant further contends that the changes made were not of such material character as would release a surety. The bond expressly provided "that no alterations made in said work upon the written order of the architect in the nature of the work to be done under said contract * * * shall in any way release the said sureties or either of them."
The original plans drawn by the architect provided for a porte cochere, but the plans had been changed to leave it off, and it was not in the contract made by Norris. The changes which were made, together with the charges or credits therefor, are as follows: The porte cochere at an additional cost of $ 158.50, bed room door, no charge, cellar door frame $ 3, an extra door $ 10, rear dormer window $ 30, rear windows credit $ 8.50, basement window $ 1.50, frame and girder on first floor $ 8.50, front stairway $ 25, back closet $ 8, basement door $ 3, extra flashing $ 10, front porch $ 8, window over porte cochere $ 2.
In the plans a small dormer about two by three feet was described in the rear of the building. When it was framed it displeased appellant, and she changed the arrangement so as to call for three large windows in the dormer, requiring the small one to be removed, and the large one to be placed in, building a dormer about ten by twelve feet, and this is the change in the rear dormer, which as stated cost $ 30. The item of $ 25 for a stairway consisted in adding an additional landing, and it is said that this change was agreed upon between the appellant and the contractor without consulting the architect. There was evidence tending to show that some of the above items were made necessary by the errors of the contractor, and it is undisputed that this is true of the item for flashing.
All of the changes which were made were approved by the architect and were covered by additional specifications in writing prepared by him and signed by the contractor, but it is said that this writing was prepared and signed after the changes had in fact been made.
Cause remanded.
Read & McDonough, for appellant.
1. No additions or alterations were made in such manner as to change the original contract and release the bond. 65 Ark 550; 66 Id. 287; 69 Id. 126; 71 Id. 199; 86 Id. 212; 104 Id. 49; 46 N.W. 1018, 52 Id. 165; 30 Neb. 657; 46 A. 416; 108 Wis. 396; 87 F. 687; 54 N.E. 136; 92 F. 299; 186 U.S. 309; 34 S.W. 933; 179 Mo. 620; 90 P. 328; 64 N.E. 558; 111 S.W. 686; Ib. 641; 89 Ark. 95; 118 S.W. 967; 126 Id. 768; 126 P. 470; 85 Id. 334; 72 N.E. 575; 46 P. 402.
2. The provision that the architect should order the changes in writing does not release the surety, even if not complied with. 98 S.W. 387; 42 N.E. 669; 72 N.E. 574; 72 P. 1032; 115 F. 697; 52 C. C. A. 419; 148 N.Y. 241; 86 N.W. 859; 73 P. 775.
3. The surety consented in advance to the changes, which were immaterial. 85 P. 333; 52 N.W. 167; 86 Id. 859; 32 N.Y.S. 25.
4. The question of materiality of the alterations is one of law. 7 Me.App. 283; 46 P. 402.
G. C. Hardin and A. A. McDonald, for appellee.
1. The making of any material change in a builder's contract without the consent of the sureties sets up a new contract and releases the sureties. 65 Ark. 550; 66 Id. 287; 69 Id. 126; 71 Id. 199; 86 Id. 212; 104 Id. 49; 92 F. 306; 6 Law T. (U.S.) 620.
2. The written order of the architect was a condition precedent to making any changes without the consent of the surety. 71 Ark. 199; 92 F. 299; 66 Ark. 287.
3. The surety was not a party to the contract for a porte cochere. This was a material change. Cases supra.
4. None of the changes were consented to by the surety. 92 F. 299.
OPINIONSMITH, J., (after stating the facts).
The instructions to the jury assumed that material changes had been made and practically directed a verdict for the defendant, unless the jury found the fact to be that appellee had consented to the changes which were made. For instance instruction No. 2, given on the motion of appellant, read as follows: "If you find from the evidence that the plaintiff and the contractor, G. W. Norris, changed the plan and added the porte cochere after W A. Stanton signed the bond, which made a difference of $ 158.50 in the cost of the house, then the court tells you that would be a different contract from the one signed by the defendant, W. A. Stanton, and your verdict should be for the defendant, unless you further find that said Stanton consented to the change." The building in controversy was an elegant home, with all modern conveniences, and, in view of its size and cost, we think the court should have told the jury, as a matter of law, that all of the changes except that of the porte cochere were immaterial. It is contemplated in all building contracts that small and immaterial changes will be suggested, and will become necessary in the progress of the construction of a building, and this fact is necessarily known to one who becomes surety upon a contractor's bond, and if the changes made are slight and immaterial, the surety is not released. Dorsey v. McGee, 30 Neb. 657, 46 N.W. 1018; Cooke v. White School Dist., 33 Ky. L. Rep. 926, 111 S.W. 686; Nowell v. Mode, 132 Mo.App. 232, 111 S.W. 641; Hohn v. Shideler, 164 Ind. 242, 72 N.E. 575. The converse of this proposition was stated in the case of O'Neal v. Kelley, 65 Ark. 550, 47 S.W. 409, where it was held that any material alteration in the contract for the performance of which a surety is bound, without his consent, discharges the surety, and...
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