Irwin v. Kilburn

• Decision Date: 24 November 1885
• Docket Number: 12,208
• Citation: 3 N.E. 650,104 Ind. 113
• Parties: Irwin et al. v. Kilburn et al
• Court: Indiana Supreme Court

3 N.E. 650

104 Ind. 113

Irwin et al. v. Kilburn et al

No. 12,208

Supreme Court of Indiana

November 24, 1885

From the Carroll Circuit Court.

Judgment reversed, with costs.

R. B F. Peirce and W. T. Brush, for appellants.

G. O Behm, A. O. Behm, B. W. Langdon and T. F. Gaylord, for appellees.

OPINION

Zollars, J.

It is alleged in appellants' complaint, that during the year 1879, they were partners, and engaged, as contractors, in the construction of the Indianapolis, Decatur and Springfield Railway from Indianapolis, through the counties of Marion, Hendricks, Putnam, and to a station in the county of Parke, a distance of about forty-three miles; that as such contractors they sublet certain work to appellee Henry L. Kilburn, and entered into a written contract with him. A copy of this contract, executed by him and them, is set out in the complaint. So much of it as needs to be set out here is as follows:

"Articles of agreement, made and concluded this 26th day of May, in the year of our Lord, 1879, by and between H. L. Kilburn, of Lafayette, Indiana, of the first part, and Irwin & Huestes, parties of the second part, witnesseth, that for the consideration of the payment and covenants hereinafter mentioned, to be made and performed by the second party, the said party of the first part doth hereby covenant and agree to construct and furnish in the most substantial and workmanlike manner, and according to the plans and specifications of Henry C. Moore, chief engineer of the Indianapolis, Decatur & Springfield Railway Company, on file in the office of the said railway company at Tuscola, Illinois, and to the satisfaction and acceptance of said engineer, or his successors, and under his directions and under the directions of his assistants, the following work on the line of said railway in the county of -----, State of Indiana: All the pile-driving for trestling and foundations, and all the timber for trestles and foundations, and all timber we may need, and excavations for foundations. Said work to be completed by the 1st day of September, A. D. 1879. And it is mutually agreed and understood, that time is of the essence of this contract. * * * It is further agreed that the work embraced in this contract shall be prosecuted with such force and at such places as said second party may direct."

To secure the due performance of this contract, according to its terms, on the part of Kilburn, and to save the appellants from loss by reason of its violation, Kilburn, as principal, and appellees Opp and Marks as his sureties, executed a bond in the penalty of $ 7,000, and payable to appellants. This action is upon that bond.

Appellants seek to recover upon the ground that Kilburn violated his contract with them. Opp and Marks demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action against them. The demurrer was sustained, and appellants declining to amend, judgment was rendered against them for costs. From that judgment they prosecute this appeal, and assign as error the sustaining of the demurrer. The only question for decision here, therefore, is, does the complaint make a case against Opp and Marks, the sureties on the bond? If it does not, the demurrer was properly sustained. If it does, the sustaining of the demurrer was error, and the judgment must be reversed. The contention of the appellees is, that it does not, because the contract between Kilburn and appellants is void for uncertainty, especially as to the sureties on the bond, in that the county in which the work was to be done by Kilburn is not given in the contract. Their position is, that it is manifest from the contract, that the intention was to limit the work to some particular county or counties, and that as no county is named, the contract is neither certain nor complete.

That sureties are favorites of the law, and will not be held beyond the terms of the engagement, is well settled. Miller v. Stewart, 22 U.S. 680, 9 Wheat. 680, 6 L.Ed. 189; Burns v. Singer Manfg. Co., 87 Ind. 541, and cases there cited; City of Lafayette v. James, 92 Ind. 240 (47 Am. R. 140), and cases there cited. It is clear here, also, that the liability of the sureties upon the bond in suit, must be measured by the terms of the bond and the contract therein recited. While that contract is not, in the full sense, their contract, it is so connected with their contract that they are bound by it if valid, and are not liable if it is not valid. Miller v. Stewart, supra; Burns v. Singer Manfg. Co., supra; White Sewing Machine Co. v. Mullins, 41 Mich. 339, 2 N.W. 196. The bond is to secure the faithful performance of that contract on the part of Kilburn, and to save appellants from loss by reason of its violation by him.

Appellees are presumed to have seen the contract, to have been acquainted with its terms, and to have contracted with reference thereto. And while they are not bound beyond its terms, the contract itself must be given a reasonable interpretation, in accordance with the settled canons of construction. The rule which requires that sureties shall not be bound beyond the terms of the engagement, does not require nor authorize a forced and unreasonable construction of the contract with a view of relieving the sureties. To the extent that the contract is valid and binding, as properly interpreted, it fixes and...