Hohn v. Shideler
| Decision Date | 29 November 1904 |
| Docket Number | 20,404 |
| Citation | 72 N.E. 575,164 Ind. 242 |
| Parties | Hohn v. Shideler |
| Court | Indiana Supreme Court |
Rehearing Denied February 15, 1905.
From Superior Court of Marion County (57,637); Vinson Carter Judge.
Action by David B. Shideler against John Hohn. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
Herod & Herod and Hugh D. Merrifield, for appellant.
Charles A. Dryer, for appellee.
The questions on this appeal arise upon exceptions to conclusions of law on a special finding, and to the decision of the court overruling a motion for a new trial. This is a second appeal. Standiford v. Shideler (1901), 26 Ind.App 496, 60 N.E. 168. The appellant Hohn was sued by the appellee on a bond executed by one Standiford, as principal, and appellant, as his surety, to secure the performance of a building contract entered into between Standiford, as the builder, and appellee, as the owner of the contemplated improvements. His defense was a discharge from liability by reason of deviations from the contract without his consent, and a breach by the appellee by his failure to cause the property and materials to be insured.
By the special finding, it appeared that there were several slight deviations from the original plans and specifications, in the following particulars: By the mistake of the foreman of the builder, and without the knowledge of the appellee, the brick foundation of the dwelling-house was built six inches higher than the contract required. A change was made by mutual agreement between the builder and appellee in the kind and location of a pump, dry well and drain-pipe, there being no difference in value between the original work and materials and the substitutes for them. A plastered wall alongside a stairway, with a door in it, was substituted for a boarded or wainscoted wall without a door, for which an agreed charge of $ 5 was paid by appellee. Appellant also complains of the substitution of a mantelpiece costing $ 32, for one costing $ 25, the difference being paid by the appellee; and, although this change is not included in the special finding, it will be considered in disposing of this branch of the case. All these alterations and deviations from the original plans and specifications were made with the mutual consent of the builder and the appellee, but without written orders of the architects, or a computation by them of the comparative value of the substituted work and materials and those specified in the contract.
The agreement between the builder and the owner contemplated alterations of the plans of the buildings, and the substitution of materials and work of a different character. These provisions entered into the undertaking of the appellant as surety on the bond of the contractor, and he was bound by them. It is true that the building contract declared that all alterations should be made on the written order of the architects; that the value of the work added or omitted should be computed by them; and that the amount so ascertained should be added to or deducted from the contract price. But the interposition of the architects was exclusively for the protection of the owner, by whom, as the contract expressly states, they were employed, and for whom they were the agents. The builder was competent to take care of his own interests, and, if the owner of the property saw fit to make changes in his plans, he had the right to do so without aid or authority from the architects. This condition of the contract being exclusively for his benefit, he could waive it, and such waiver would not affect the liability of the surety, unless the changes so made materially altered the contract price or cost of the buildings.
But had there been no provision in the contract authorizing changes in the plans of the buildings, those described in the special finding and the change in the kind of mantelpiece would not have released the surety. All the alterations were unimportant in their nature and trivial in value, and were such only as might reasonably be anticipated in the process of the construction of a building. Alterations of this kind have not been considered evidence of the abrogation or abandonment of a building contract, and the courts have shown an inclination to regard them as contemplated by the agreement and permissible under it. Henricus v. Englert (1892), 63 Hun 625, 17 N.Y.S. 235.
A question of greater difficulty is presented upon the finding that the owner was to insure the buildings and the materials on the premises, in his own name or in the name of the contractor, against loss by fire, the proceeds of the policy in case of loss to be paid to the builder and owner as their interests might appear; but that the appellee insured the dwelling-house to the amount of $ 1,500 for five years in his own name, the policy containing a clause making the proceeds payable to one Henry Frank, a mortgagee, as his interest might appear. This policy was not such as the contract described, and the question is, did the failure of the owner to insure the building and materials in the manner required by the contract release the surety?
The condition of the bond sued on was that Standiford, the builder, should duly perform his contract. It has often been said that the contract of a surety is to be strictly construed in his favor, and that, if liable at all, he is liable only according to the precise terms of his undertaking. Anything done or omitted by the property owner in a building contract to prejudice the position of the surety will discharge him either pro tanto or altogether. Capel v. Butler (1825), 2 Sim. & Stu. 457.
In Watts v. Shuttleworth (1860), 5 H. & N 233, Watts, the owner of a warehouse in Manchester, contracted with one Harrap, a builder, for certain property described as "fittings" of the first and second floor of the warehouse, for which the builder was to receive £ 3,450. One stipulation of the contract was that Watts, the owner, should insure the "fittings" from risk or accident by fire at the expense of the builder. The owner advanced to Harrap, the contractor £ 1,800. A number of the "fittings" to the value of £ 2,300 were made and placed in a room in Harrap's workshop, where they were destroyed by accidental fire. The "fittings" were never put up. Harrap having become insolvent, the owner had not been repaid...
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