Johnston v. Cole

• Decision Date: 12 May 1897
• Citation: 71 N.W. 195,102 Iowa 109
• Parties: JOHNSTON v. COLE.
• Court: Iowa Supreme Court

102 Iowa 109

71 N.W. 195

JOHNSTON

v.COLE.

Supreme Court of Iowa.

May 12, 1897.

Appeal from district court, Grundy county; Fred O'Donnell, Judge.

Plaintiff made a contract with J. T. Elliott to construct for him a house and barn for the agreed price of $10,000, in accord with certain plans and specifications, and to complete the same by January 1, 1882. The contract provided that, should there be a failure to complete the buildings in accordance with its terms, the same might be completed by the plaintiff, and that Elliott should be answerable in damages, including a penalty of five dollars per day for the time after the day fixed for the completion of the buildings. As security for the performance of his contract, Elliott was to execute a satisfactory bond to plaintiff for the faithful performance of his contract, and the defendant appears as a surety on a bond executed in pursuance of such contract. The petition shows a breach of the contract in several particulars, and especially that the buildings were not completed in the time required, nor, in fact, at all, by Elliott, and that plaintiff completed the same, and made payments so that his aggregate damage is $4,189.54, for which he asks judgment against defendant, as surety on the bond, with interest thereon. The answer consists of denials, and a defense that may be more particularly noticed in the opinion. The cause was tried to a jury that found for defendant, and from a judgment thereon the plaintiff appealed. Affirmed.J. W. Willett, for appellant.

Boies & Boies, for appellee.

GRANGER, J.

Elliott, who was principal in the bond, is not a party to the suit. There is no liability in the case unless the bond is valid as to the defendant. Defendant admits that he signed his name to the bond as surety, but that it was never delivered with his knowledge or consent. He says, in his answer, that the bond was presented to him for his signature, and that it was agreed that the bond was not to be delivered to plaintiff unless one Morrison should become a co-surety thereon with defendant; and he further says that Morrison's signature was not obtained thereto. Defendant introduced evidence directly in support of such plea, and the court instructed the jury to the effect that, if the plea was sustained by the proofs, there could be no recovery. It affirmatively appears that Morrison's name is not to the bond. The jury answered in the negative the following interrogatory submitted by the...