House v. American Surety Co.

• Decision Date: 17 November 1899
• Citation: 54 S.W. 303
• Parties: HOUSE v. AMERICAN SURETY CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 303

HOUSE v. AMERICAN SURETY CO.¹

Court of Civil Appeals of Texas.

November 17, 1899.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by Henry House against the American Surety Company. From a judgment for defendant, plaintiff appeals. Affirmed.

W. P. & A. R. Hamblen, for appellant. Ewing & Ring, for appellee.

GARRETT, C. J.

This action was brought by the appellant, Henry House, against the appellee, the American Surety Company, to recover of it as surety upon the bond of Bonnell, Matthews & Harding, given to the appellant for the faithful performance of their contract with him to erect a three-story brick building agreeably to the attached drawings and specifications. The petition alleged that the contractors had failed to complete or construct the building in accordance with the contract, to appellant's damage in the sum of $6,551.83, and that the principals were not joined as defendants because they were non-residents and notoriously insolvent. The defenses were that (1) the surety was discharged by the subsequent alteration of the contract, whereby the owner and contractors, without the consent of the surety, made a supplemental agreement for the erection of a four-story, instead of a three-story, building: (2) the plaintiff had prematurely, and without warrant under the contract, taken the work out of the hands of the contractors. The case was tried by the court without a jury, and judgment was rendered for the defendant.

Henry House entered into a written contract on July 11, 1895, with the firm of Bonnell, Matthews & Harding, for the performance by them, under the direction and to the satisfaction of the architects, acting as the agents of the owner, "of the work included in the erection, construction, and completion of one certain three-story brick building, * * * agreeably to the drawings and specifications made by the said architects, * * * including all labor and material incident thereto," for the price of $20,500, payable in specified installments. The contract, among other things, provided: "3rd. Should any alteration be required in the work as shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architects, and the sum herein agreed to be paid for the work according to the original specifications shall be increased or diminished, as the case may be. * * * 6th. The contractors shall and will proceed with said work, and every part and detail thereof, in a prompt and diligent manner, and shall and will wholly finish the said work according to the said drawings and specifications and this...