Hustace v. Davis

• Decision Date: 27 February 1917
• Docket Number: No. 957.,957.
• Parties: MELLIE E. HUSTACE v. J. R. DAVIS AND JAMES BICKNELL, DEFENDANTS, AND JAMES BICKNELL, AUDITOR OF THE CITY AND COUNTY OF HONOLULU, GARNISHEE.
• Court: Hawaii Supreme Court

23 Haw. 606

MELLIE E. HUSTACE

v.J. R. DAVIS AND JAMES BICKNELL, DEFENDANTS, AND JAMES BICKNELL, AUDITOR OF THE CITY AND COUNTY OF HONOLULU, GARNISHEE.

No. 957.

Supreme Court of the Territory of Hawai‘i.

Argued February 13, 1917.

Decided February 27, 1917.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT. HON. T. B. STUART, JUDGE.

Syllabus by the Court

Where a building contract provides that the owner shall have the right to order changes to be made in the work a surety on the bond of the contractor is deemed to have assented in advance to the making of changes, and he will not be released from liability unless the changes made were of such a character as could not reasonably be supposed to have been within the contemplation of the parties at the time the contract was entered into.

Where a building contract contemplated the making of changes in the work and provided that the making of changes should not affect the validity of the contract, and provided also that no changes should be made except upon the written order of the architect, held that where certain changes were made pursuant to the requirement of the owner and upon the verbal order of the architect, the surety on the bond was not released by reason of the fact that the architect's order was not made in writing.

Where a building contract contemplated an extension of the time for performance for a period equivalent to any delay that might be caused by the owner if written claim for such extension should be presented within forty-eight hours of the occurrence, held that where delay had been caused by orders for changes in the work and the architect allowed a definite extension of time, the surety on the bond was not released from liability by reason of the failure of the contractor to make written application for an extension.

Departure from the terms of a building contract in the method of procedure or performance in the manner of carrying out the contract, as in the matter of making payments, will not release the surety on the bond unless the deviations tended to prejudice his rights.

It is reversible error to refuse to give a requested instruction which is accurate, applicable and material to an issue involved in the case where the charge given to the jury does not cover the point.

C. S. Davis for plaintiff.

E. C. Peters for defendant Bicknell.

ROBERTSON, C.J., QUARLES AND COKE, JJ.

OPINION OF THE COURT BY ROBERTSON, C.J.

This is an action against the principal and surety on a builder's bond, in which there was a verdict for the plaintiff against the principal but in favor of the surety. The plaintiff brings exceptions.

There was evidence to the effect that on October 24, 1910, Mrs. Hustace made a contract with Davis for the furnishing of the materials and labor for and the erection on her premises at Waikiki, Honolulu, of a two-story residence, according to plans and specifications, for the sum of $7116; that the contractor gave a bond in the sum of $3558, with the defendant Bicknell as surety, conditioned for the performance on his part of the covenants, conditions and agreements contained in the contract, and that he would pay for all material used and labor employed in the performance of the contract and save Mrs. Hustace harmless from all liens, suits, damage, etc. In this action the plaintiff claimed the sum of $1952.48, which was made up as follows: Davis was credited with the sum called for by the contract, $7116; extras accruing from changes ordered by Mrs. Hustace, $456.74; and an extra charge allowed for a concrete floor not required by the plans, $325. And the contractor was charged with two cash payments made to him amounting to $4500; cash paid to material-men, $2966.41; payments on judgments and to settle other liens filed by material-men, $1588.64; costs in lien cases, $237.95; deductions made by the architect, including penalty for failure to complete the work in time (27 days, at $15, $405), $517.88; and an item designated “premium on policy,” $39.34, as to which we find no evidence in the record. The verdict of the jury was against Davis for the sum of $1435.76, which would seem to have been arrived at by deducting from the amount claimed by the plaintiff the sum of $516.72, which was the amount paid to discharge one of the judgment liens. The plaintiff's exceptions are to certain rulings made by the court below on the admission of evidence, to the instructions given or refused, to the verdict, and to the overruling of a motion for a new trial.

Counsel for the defendant Bicknell contends that upon the evidence the surety on the bond was released from liability and that a motion for a directed verdict in favor of the surety, which was made when both parties had closed their evidence, ought to have been granted, and that, if so, any errors that may have occurred in the instructions given the jury were harmless and need not be discussed. The several grounds on which the motion for the directed verdict in favor of the surety was based will be considered in connection with the evidence bearing thereon. The first ground was as follows: “That the owner without the consent of the surety and in the absence of a written order of the architect therefor, altered the building contract of October 24, 1910, by ordering and causing to be performed certain substantial extras upon the building subject to the contract, contrary to the provisions of Article 3 of said building contract.” Article 3 of the contract provided that “No alterations shall be made in the work except upon written order of the architect,” and a paragraph in the specifications, which were made part of the contract, provided that “The owner shall have power to require alterations in the work shown or described in the drawings or specifications, and the contractor shall proceed to make such changes without causing delay. In every such case, the price agreed to be paid for the work under the contract shall be increased or decreased, as the case may require, according to a fair and reasonable valuation of the work added or omitted, and the value of such work shall be fixed by fair admeasurement and valuation, made by the architect, or by some competent person appointed by him. Such alteration or variations shall in no way render void the contract, and no claim for variations or alterations, or the increased or decreased price thereof, shall be valid, unless done in pursuance of an order from the architect, and notice of such claim made to him in writing before the commencement of such work.” The evidence shows that the owner required certain changes to be made in the work which called for the alteration of partitions, additional doors, wood work, hardware and labor for which the contractor rendered a bill for $714.70 and the architect allowed $456.74. The architect testified that he had given an order for this extra work orally, but not in writing. Although there are cases holding the contrary, we believe the sound rule to be that the reducing of a verbal order for changes in the work to writing is an immaterial formality so far as the surety on the bond is concerned and that the lack of a written order will not release him from liability. Hohn v. Shideler, 164 Ind. 242;Hinton v. Stanton, 165 S. W. (Ark.) 299; Bartlett v. Illinois Surety Co., 142 Ia. 538, 553. It is also contended that the changes ordered and made were material alterations in the plans which, as matter of law, released the surety. It is argued that sureties are favorites of the law and a contract of suretyship must be strictly construed to impose upon the surety only those burdens clearly within its terms and must not be extended by implication or presumption. In the case of Territory v. Pacific Coast Casualty Co., 22 Haw. 446, 450, this court said, “There is no principle of law better settled than that a surety has the right to stand upon the very terms of his contract.” But here, one of the “very terms” to which the surety had assented was that the owner could require alterations in the work and that the contractor should make them. In a case such as this the surety is not released by the making of material changes but by such only as cannot reasonably be said to have been within the contemplation of the parties when the contract was entered into. It is well settled that where a building contract provides that the...