Joblin v. Illinois Surety Co.

• Decision Date: 04 January 1916
• Citation: 182 S.W. 143,193 Mo.App. 132
• Parties: ALFRED H. JOBLIN, Appellant, v. ILLINOIS SURETY COMPANY, Respondent
• Court: Missouri Court of Appeals

182 S.W. 143

193 Mo.App. 132

ALFRED H. JOBLIN, Appellant, v. ILLINOIS SURETY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

January 4, 1916

Argued and Submitted December 7, 1915.

Rehearing Denied 193 Mo.App. 132 at 148.

Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.

AFFIRMED.

Judgment affirmed.

Jesse McDonald, Joseph A. Wright and Arnold Just for appellant.

(1) The rules applicable to compensated sureties are radically different than those applicable to the old-fashioned accommodation sureties; the doctrine of strictissimi juris no longer prevails, and in its stead is the doctrine that a compensated surety must show some injury before it can be released for deviations from the contract. Lackland v Renshaw and Surety Co., 256 Mo. 133; Rule v. Anderson et al., 160 Mo.App. 347; Boppart v. Surety Co., 140 Mo.App. 675; Williams v. Pacific Surety Co., 149 P. 524; City of Phila. v. Surety Co., 231 Pa. St. 208, 80 A. 62; Bross v. McNichols, 66 Ore. 42, 133 P. 782; U. S. Fidel. & Guar. Co. v. U. S. to Use, Etc., 191 U.S. 416, 48 L.Ed. 242; U. S. to Use, Etc., v. U. S. Fidel. & Guar. Co., 178 F. 721; Lakeside Land Co. v. Surety Co., 105 Minn. 213, 117 N.W. 431; Crystal Ice Co. v. Surety Co., 159 Mich. 102; Bank v. Fidel. & Deposit Co., 128 N.C. 366; Hill v. American Surety Co., 200 U.S. 197; Illinois Surety Co. v. Huber (Ind.), 107 N.E. 298. (2) Defendant was not released because additional work was done without the written order of the architect, it appearing that the architect orally approved the work, and not appearing that loss or increased risk resulted to the surety. Lackland v. Renshaw, 256 Mo. 133; Rule v. Anderson, 160 Mo.App. 347; Boppart v. Surety Co., 140 Mo.App. 675; American Surety Co. v. Scott, 18 Okl. 264; Cowles v. U.S. Etc., Co., 32 Wash. 120, 72 P. 1032. (3) The plaintiff had the right under the contract to take charge of the work in case of the contractor's default, and the points urged as to the failure of the architect to, in writing, certify such default, and the failure to give a notice additional to that of December 9, are not available to defendant, because, (a) They are without substance, there having been no loss or increase of risk to the surety. Lackside Land Co. v. Surety Co., 105 Minn. 213, 117 N.W. 431; Lackland v. Renshaw, 256 Mo. 133; Monro v. Surety Co., 47 Wash. 488, 92 P. 280; Hefferman v. U. S. Fidel. & Guar. Co., 37 Wash. 477, 79 P. 1095; Pulaski Hall Assn. v. American Surety Co., 123 Minn. 222. (b) They were not pleaded. Nodaway Drainage District No. 1 v. Illinois Surety Co., 252 Mo. 543; Burgess v. Insurance Co., 114 Mo.App. 169; Hilburn v. Insurance Co., 140 Mo.App. 355. (4) Defendant was not released by the failure to secure the architect's certificates of expenditures, it affirmatively appearing that no loss resulted from such failure. Lackland v. Renshaw and Surety Co., 256 Mo. 133; Smith v. Malleson, 148 N.Y. 241; Church v. Curtis (Minn.) 153 N.W. 259; Southwestern Surety Co. v. Minnetonka Lumber Co., 148 P. 1038; St. John's College v. Aetna Indemnity College, 120 N.Y.S.. 496.

Percy Werner for respondent.

(1) This was a jury waived case. Neither party asked for special findings of fact nor were declarations of law asked by either party. No point is made as to the admissibility of any evidence admitted or rejected. In this state of the record the appellate court has nothing to determine. Rice, Stix & Co. v. McClure & Harper, 74 Mo.App. 383. The written opinion filed by the court and copied into the bill of exceptions is not treated as equivalent to findings of fact or conclusions of law. Insurance Co. v. McDearman, 133 Mo.App. 671; Little v. Hooker Steam Pump Co., 122 Mo.App. 620. (2) The distinct finding of the issue as to the abandonment of the work by the contractor, in favor of the defendant below, settles every question in this case. (3) Even had there been an abandonment of the work by the contractor, the failure of the plaintiff to allege and prove that the expense incurred by the owner for finishing the work had been audited and certified by the architect would have been fatal to his right to recover. American Bonding Co. v. Gibson County, 127 F. 671; Same case, 145 F. 871. (4) The changes in the building contract in the way of alterations and additions in the building, destroyed the identity of the contract and released the surety, and it is immaterial that they varied the expense but little. Beers v. Wolf, 116 Mo. 179; Reissans v. Whites, 128 Mo. 135; Burne's Estate v. Fid. & Dep. Co., 96 Mo.App. 467; Eldridge v. Fuler, 59 Mo.App. 44; Killoren v. Meehan, 55 Mo.App. 427. (5) The fact that a surety has received compensation for going upon a bond, and is held to the liability of an insurer, furnishes no warrant for closing one's eyes to the plain terms of the contract, the faithful performance of which each surety has attempted to secure. An examination of a few Missouri cases will show that, even as to the friendless insurance company, the courts enforce the contracts of parties as they make them, though often hard. Kennefick-Hammond Co. v. Insurance Co., 119 Mo.App. 308; Evanston Golf Co. v. Insurance Co., 119 Mo.App. 175; Bradley v. Insurance Co., 90 Mo.App. 349-369; Cummins v. Insurance Co., 81 Mo.App. 291; Hoover v. Insurance Co., 93 Mo.App. 111; Pearson v. Insurance Co., 73 Mo.App. 480. (6) The admissions of plaintiff contained in his petition in his suit against his architects show that defendant, as surety, was released from any liability to plaintiff under the contract. Bowman v. Globe Steam Heating Co., 80 Mo.App. 628; Kirkpatrick v. Metropolitan St. Ry. Co., 211 Mo. 68. (7) Defendant's special defenses were properly pleaded. As an answer to the charge of abandonment of the contract, by the contractor, respondent could not well have pleaded the failure to secure a certificate from the architect as to default in the rate of progress of the work. So the requirement as to the architect's certificates of expenditures affected only the competency of the evidence, as plaintiff was bound to procure the kind of evidence required by the contract. (8) The only distinction between the voluntary and the hired surety lies in the application of the strictissimi juris doctrine; where there is no room for the application of that doctrine, if the contracts which they sign are the same the resulting liability is identical without regard to the fact that one is corporate and the other not, or that one is compensated and the other gratuitous. Stearns "The Law of Suretyship," secs. 250, 251 and 252.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--Action on contract and bond for the erection of a building to be occupied as a residence by plaintiff, who seeks to recover $ 1728.28 as excess necessarily paid out by him over the contract price to mechanics and materialmen in order to complete the building, the contractor, Banner Land & Building Company, as it is alleged, having abandoned the work before its completion. The action was originally brought against the contractor as well as against the Illinois Surety Company, surety on the bond, but was dismissed as to the contractor, no service of process having been made upon it and it not appearing to the action. The trial was before the court, a jury having been waived, and at its conclusion the court found in favor of defendant and entered up judgment accordingly, from which plaintiff appealed.

At the close of the case defendant offered a demurrer and it is stated in the abstract prepared by appellant that the court sustained this demurrer. That statement is obviously incorrect. The demurrer was offered but no action of the court upon it anywhere appears. Moreover a memorandum filed by the court in announcing its decision, as well as the judgment itself, which appears in the short transcript filed with us, negatives the idea that the case went off on demurrer. The judgment recites the appearance of plaintiff and the Illinois Surety Company by their respective attorneys, the waiver of a jury, and then recites that the parties submit the cause to the court "upon the pleadings, the evidence and the proof adduced, and the court having heard and duly considered the same, and being fully advised in the premises, doth find the issues in favor of the defendant Illinois Surety Company, wherefore, it is considered and adjudged," etc. Obviously, this is not a judgment upon a demurrer. In fact we do not understand that beyond this recital in the abstract learned counsel for appellant so contend.

In rendering his decision in the case the learned trial judge filed a memorandum which has been brought up by appellant. As this finding or memorandum was not made at the request of either party, and does not therefore fall within the provisions of section 1972, Revised Statutes 1909, it has not the effect of a finding under that statute, that is, does not have the effect of a special verdict, as do such findings (South St. Joseph Land Co. v. Bretz, 125 Mo. 418, l. c. 423, 28 S.W. 656), and is to be treated as a general verdict. [See Lesan Advertising Co. v. Castleman, 265 Mo. 345, 177 S.W. 597.] As was said by our Supreme Court in Mead v. Spalding, 94 Mo. 43, 6 S.W. 384, while such opinion cannot be made to take the place of instructions, or a finding of facts given as an instruction, "the opinion of the trial court may be cited and used in the consideration of the case presented by the record, and in that respect is often of great value to us; but it is not part of the record upon which the case must be determined in this court." That the appellate courts have availed themselves of such memorandum without having been bound by it as a part of the record, appears in very many cases.

In the...