Howard County v. Baker

• Decision Date: 08 January 1894
• Citation: 24 S.W. 200,119 Mo. 397
• Parties: Howard County v. Baker et al., Appellants
• Court: Missouri Supreme Court

24 S.W. 200

119 Mo. 397

Howard County v. Baker et al., Appellants

Supreme Court of Missouri, Second Division

January 8, 1894

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

Affirmed.

Quarles & James, Gates & Wallace, and James A. Reed for appellants.

(1) Plaintiff was not entitled to recover on its petition because it alleged as a breach the failure of Baker to comply with the contract of June 1, whereas the undisputed evidence showed that this contract, as pleaded, no longer existed, but the same had been changed, altered, modified and abrogated by a new contract made on October 1. Plaintiff's right to recover, if at all, was for failure to perform the new and altered agreement. Victor Sewing Machine v Scheffler, 61 Cal. 530; Osborne v. VanHouten, 45 Mich. 444; Warden v. Ryan, 37 Mo.App. 466. (2) The liability of the sureties is not to be extended beyond the terms of this obligation strictly construed, and by entering into a new contract on October 1, changing the terms of the agreement of June 1, plaintiff released the bonds-men even though they were in no manner injured by the making of such new contract. Warden v. Ryan, 37 Mo.App. 466; Blair v. Insurance Co., 10 Mo. 562; Ryan v Morton, 65 Tex. 258; United States v. Corwine, 1 Bond, 339; Harrisonville v. Porter, 76 Mo. 359; State v. McGonigle, 101 Mo. 353. (3) The bond and the contract must be construed together, and the provisions of the contract relative to payments are for the benefit of the sureties. Ryan v. Morton, 65 Tex. 258; Zimmerman v. Judah, 13 Ind. 286; Calvert v. Dock Co., 2 Keen's Ch. Rep. 639; Law v. East India Co., 4 Vesey, 824. (4) The provisions of the contract that only eighty-five per cent. of the labor done and materials on the ground should be paid to Baker, and fifteen per cent. reserved until the contract was fully performed, were for the protection of the defendants Loeffler and Stoeltzing, as well as the plaintiff. And by paying Baker in excess of eighty-five per cent. prior to the time stipulated, the plaintiff voluntarily abandoned securities it should have retained for its own protection and the protection of the bondsmen, and violated the contract and can not now be heard to ask that the bondsmen make good to it the money lost through its own noncompliance with terms of its contract. Calvert v. London Dock Company, 2 Keen's Ch. Rep. 639; Taylor v. Jetter, 23 Mo. 244; Ryan v. Morton, 65 Tex. 262; Law v. East India Company, 4 Vesey, 824. (5) The damages allowed were grossly excessive. See foregoing authorities.

Sam C. Major, Jr., R. C. Clark and Draffen & Williams for respondent.

(1) There was no variance between the contract pleaded in the petition and that shown on the trial. The bond sued on recites a contract dated July 1, 1887, and it is expressly provided that changes made during the progress of the work should not render void said contract. Rude v. Mitchell, 97 Mo. 365; Ashenbroedel Club v. Finlay, 53 Mo.App. 256. (2) No objection was made or exception taken on the ground of variance before the referee, or in the circuit court. No affidavit was filed as required by the statute, and the point is made for the first time in this court. It comes too late, even if there was any foundation therefor. Fischer v. Max, 49 Mo. 404; Brown v. Railroad, 31 Mo.App. 661; Wells v. Sharp, 57 Mo. 56; Ely v. Porter, 58 Mo. 158; Meyer v. Chambers, 68 Mo. 626. (3) As the contractor was not required to do any work in this case, except such as was provided for by the terms of the contract, there was no change in the contract available to the surety as a defense. Ashenbroedel Club v. Finlay, 53 Mo.App. 256; Western Building and Loan Association v. Fitzmorris, 7 Mo.App. 283; Hayden v. Cook, 52 N.W. 165; Consaul v. Sheldon, 52 N.W. 1104. (4) No overpayments were made to the contractor during the progress of the work. The contract does not provide that he should be paid such proportion of the contract price, as the material on the ground, and the work done on the building, were to the whole building. (5) "If the court leaves the parties to be governed by their understanding of their own language, it, in effect, enforces the contract as actually made. That they should be so permitted to construe their own agreement, accords with every principle of reason and justice." St. Louis Gas Light Co. v. St. Louis, 46 Mo. 121; Patterson v. Camden, 25 Mo. 13; Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo.App. 49. (6) The parties stipulated that the amount of material furnished upon the ground and the work done on the building should be ascertained by the superintendent's estimate, and, when so ascertained, eighty-five per cent. thereof should be paid to the contractor. In the absence of fraud, these certificates were conclusive, and the county was compelled to pay eighty-five per cent. thereof to the contractor. Wyckoff v. Meyers, 44 N.Y. 143; Lloyd on Building and Buildings, p. 20; Williams v. Railroad, 112 Mo. 463. (7) The referee found, as a fact, that the payments made each month, were eighty-five per cent. of the material furnished on the ground and work done on the building during the preceding month. His findings as to a matter of fact will not be interfered with or disturbed by this court. Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Vogt v. Butler, 105 Mo. 479. (8) The contract was not altered or changed. The giving up of a security held by the county, by reason of a failure to retain a sufficient proportion of the price, should not be held admissible under the allegation that the contract had been altered and changed. This defense was not admissible under the pleadings. Pitts v. Congdon, 2 N.Y. 352.

OPINION

Gantt, P. J.

This is a suit on a bond executed by the defendant, Baker, as principal, and the other defendants, as his securities, conditioned for the performance of a contract to build a courthouse at the city of Fayette, made by him with the county court of Howard county.

The defendant, Baker, on the first day of July, 1887, entered into a written contract with said court to furnish the material and construct said courthouse, according to certain plans and specifications prepared by the architects, and made part of the contract, for which he was to receive the sum of $ 32,942.

The only clauses in this contract, necessary to be considered in the determination of the questions of law, presented by the sureties upon said bond are, first, the one providing for changes during the progress of the work; and, second, the provision therein as to the manner of making payments to the contractor.

The contract in the second clause of the second paragraph provides that the county court, through the architects, "might make any alteration desired in the specifications, and should have the right and power to make any such change or changes, and that the same should it no way injuriously affect or make void the contract;" but that the difference for work omitted should be deducted from the amount of the contract, by fair valuation, and for additional work required by any alteration, the amount should be agreed upon before commencing the additions, and that the agreement should state the extension of time, if any, to be granted by reason thereof.

The stipulation as to the manner of payment is as follows:

"Eighty-five (85) per cent. on the amount of the material furnished on the grounds, and work done on the building on the first of each and every month, as work shall progress; and the remaining fifteen (15) per cent. to be paid when the building is fully completed and accepted. All payments to be made on the superintendent's estimate of material furnished and labor performed, and indorsed by the county court and certified to by the architects."

At the time this contract was entered into, the defendant, Baker, as principal, and his codefendants, as his securities, executed the bond sued on to plaintiff, Howard county, in the penal sum of $ 65,884, subject to the condition, that, whereas, Samuel B. Baker had contracted with the county of Howard, in the state of Missouri, to furnish the material and construct the courthouse building, as planned, drawn and specified, for the county aforesaid, for the sum of $ 32,942, by contract dated July 1, 1887, if the said Baker should duly perform said contract, said obligation to be void, otherwise the same to remain in full force.

The petition sets out the bond, and the condition above recited, which stated that the contract was dated July 1, 1887; and for breach thereof alleges, that the said Baker did not perform his said contract, but after he had partly erected the walls of the building, and performed other work thereon, he abandoned the same, and left the house unfinished and incomplete, and that the plaintiff was compelled to complete said building, and in doing so necessarily laid out and expended the sum of $ 11,771.73, in excess of the amount for which said Baker, by his said contract, had covenanted and agreed to erect said courthouse, and asked judgment for the penalty of the bond, and that execution issue for the damages assessed. Nothing is said in the petition about an alteration in the work, made October 1, 1887, as to the lintels of some of the windows. No objection was taken before the referee, or in the trial court, as to any variance between the contract pleaded in the petition, and that shown by the evidence.

The answer of defendant, Baker, is a general denial. The other defendants, his sureties, admit the execution of the bond deny the other allegations of the petition, and allege "that the plaintiff and Samuel B. Baker altered the terms, conditions and stipulations of the contract for the performance of which said bond was given as security, and which alterations were made...