Inman v. Nolan

• Decision Date: 07 December 1926
• Docket Number: No. 19651.,19651.
• Citation: 288 S.W. 1007
• Parties: INMAN et al, v. NOLAN et al.
• Court: Missouri Court of Appeals

288 S.W. 1007

INMAN et al, v. NOLAN et al.

No. 19651.

St. Louis Court of Appeals. Missouri.

December 7, 1926.

Appeal from Circuit Court, Montgomery County; Ernest S. Gantt, Judge.

"Not to be officially published."

Action by Virgil P. Inman and the California State Bank against Anton G. Nolan and another. Judgment for plaintiffs against the respective defendants in unsatisfactory amounts, and they appeal. Affirmed.

Baker & Baker, of Fulton, for appellants. E. L. McCall, of Fulton, and P. S. Terry, of Festus, for respondents.

SUTTON, C.

This is an action on the bond of a building contractor.

On May 24, 1924, the defendant Anton G. Nolan and consolidated school district No. 3 of Callaway county, Mo., entered into a contract in writing duly executed by the parties, whereby it was agreed, so far as material here, substantially as follows:

"The contractor, Anton G. Nolan, shall and will provide all the materials and perform all of the work for the erection and completion of additions and alterations to be made to the present public school building at New Bloomfield, Mo., as shown on the drawings and described in the specifications prepared by the architects. No alterations shall be made in the work except upon written order of the architects, the amount to be paid by the owner or allowed by the contractor by virtue of such alterations to be stated in said order. Should the school district and the contractor not agree as to the amount to be paid or allowed, the determination of said amount shall be referred to arbitration. The sum to be paid by the school district to the contractor for said work and materials shall be $23,493, subject to additions and deductions as here-inbefore provided, and that such sum shall be paid by the school district to the contractor only upon certificates of the architects. Eighty-five per cent of the value of the work and materials furnished and put in the building by the 25th of each month shall be paid on or before the 10th day of the next following month, the final payment to be made within ten days after the completion of the work included in the contract."

Thereupon the defendant Nolan as principal and defendant Surety Company as security made and executed to said school district their bond in the sum of $23,493, conditioned substantially as follows:

"The condition of the above obligation is such that whereas A. G. Nolan has on the day of the date of these presents executed and entered into a certain contract with consolidated school district No. 3 of Callaway county, Mo., for the erection of certain buildings in said contract described: Now, if the said A. G. Nolan shall well and truly perform and fulfill all and every the covenants, conditions, stipulations, and agreements in said contract mentioned to be performed and fulfilled, and any alterations and additions to such contract, provided such alterations and additions, if any such be made, shall not exceed in extra costs the sum of one thousand dollars; the said surety hereby expressly waiving all rights to be notified of, or by any further act to give our assent to, such alterations and additions, and acknowledging ourselves to be bound unconditionally for the faithful performance of said contract and of such alterations and additions within limit of said contract price and of such extra costs aforesaid, and shall keep the said school district harmless and indemnified from and against all and every claim, demand, judgments, liens, and mechanics' hens, costs, and fees of every description, incurred in suits or otherwise, that may be had against it or against the buildings to be erected under said contract, including such alterations and additions, and shall repay the said school district all sums of money which it may pay to other persons on account of work and labor done or materials furnished on or for said buildings."

There must also be read into this bond the condition for payment for material used for such work, and for all labor performed in such work, whether by subcontractor or otherwise, as such a bond is required to be conditioned under section 1040, S. 1919.

Prior to the execution of the contract and bond aforesaid, the old school building was partially destroyed' by fire. The basement rooms and four walls of the building were not destroyed, but were left intact, except a small portion of the second story of the front wall, which was broken out. The work to be performed under the contract and the drawings and specifications was the construction of the work on the walls of the building as they then stood necessary to restore or complete the building, and the construction of a new auditorium as an addition " to the old building.

After the execution of the contract and bond aforesaid, the defendant Nolan subcontracted the brickwork to the plaintiff Inman. The contract between Nolan and Inman provided that Inman was to furnish the labor and material and complete all work called for under the heading of brickwork for the new auditorium added to the old school building and all patchwork and relaying of old brick on the old building in accordance with the drawings and specifications. For the brickwork on the new auditorium he was to receive $3,288, and, for all patchwork and relaying of old brick on the old building, $12 per day for bricklayers, 45 cents per hour for mortarmen, and brick carriers, and $5 per thousand for mortar per wall measurement, payments to be made as the work progressed, 85 per cent. monthly on material and labor actually in place. It was further agreed that these payments were to be made to the California State Bank. It appears that this provision for making the payments to the bank was for the purpose of securing the bank for loans made to Inman on the work. This accounts for the bank being joined as plaintiff with Inman in this suit.

After the execution of the contracts and bond as aforesaid, Nolan entered upon the construction of the foundation for the new auditorium, and while this work was in. progress, and when it had been about completed, and before any work had been done on the old building, the walls of the old building were blown down by a tornado. The rebuilding of these walls and other work occasioned by the falling of the walls entailed an extra cost of $6,763.21. The brickwork required in rebuilding the old walls was performed by Inman under an arrangement with Nolan. Inman also performed the brickwork on the new auditorium in accordance with his original contract with Nolan. The remaining work caused by the falling of the walls of the old building, as well as the remaining work required to be performed by Nolan under his original contract with the school district, was duly performed by him directly or through subcontractors, and the building was thus brought to completion. There was no agreement in writing made between Nolan and the school district relative to the extra work and expense entailed by `the blowing down of the walls of the old building, and there was...