Kneisley Lumber Co. v. Edward B. Stoddard Co.

• Decision Date: 31 March 1908
• Parties: KNEISLEY LUMBER COMPANY, Appellant, v. EDWARD B. STODDARD COMPANY et al., Respondents
• Court: Missouri Court of Appeals

109 S.W. 840

131 Mo.App. 15

KNEISLEY LUMBER COMPANY, Appellant, v. EDWARD B. STODDARD COMPANY et al., Respondents

Court of Appeals of Missouri, St. Louis

March 31, 1908

Appeal from Greene Circuit Court.--Hon. Jas. T. Neville, Judge.

AFFIRMED.

Judgment affirmed.

George Hubbert for appellants.

(1) The uniform holding in Missouri is that any change in the terms of a building contract, even in the course of its execution without the surety's consent, releases his obligation under the builder's bond. Beers v. Wolf, 116 Mo 179; Heim Brewing Co. v. Hazen, 55 Mo.App. 277; Taylor v. Jetmore, 23 Mo. 244; Ryan v Morton, 65 Texas 262; Bragg v. Shain, 49 Cal. 131; Kane v. Thuener, 62 Mo.App. 69; Timmerberg v. Schramm, 71 Mo.App. 87; Killoren v. Meehan, 55 Mo.App. 427; Eldridge v. Fahr, 59 Mo.App. 44; Fullerton v. Gates, 89 Mo.App. 201. (2) Generally, the courts are strict in ruling that variation in the terms or conditions of payment as provided in the contract are fatal--that payments must be made as and when stated in the contract only; otherwise the surety is discharged. Gato v. Warrington, 19 So. 883; Bachus v. Archer, 67 N.W. 913; Evans v. Graden, 28 S.W. 439, 125 Mo. 72; St. Mary's College v. Meager, 11 S.W. 608. (3) Harve Kneisley had no authority, as partner in the lumber business to sign the firm name as surety for Stoddard Company to the builder's bond. Bentzen v. Zierlien, 4 Mo. 417; Gwinn v. Rooker, 24 Mo. 290; Henry County v. Gates, 26 Mo. 315; Bank v. Schaumburg, 38 Mo. 237. (4) A partner's powers are limited to the objects and ordinary necessities of such partnerships, on the principle of agency. George on Part., pp. 215, 235, 236; Brandt on Guar. and Sur., sec. 10; 24 Am. and Eng. Enc. L., p. 726; Bullard v. DeGroff (Neb.), 82 N.W. 4; George, Part., sec. 93, p. 215; Bowman v. Heating Co., 80 Mo.App. 335. (5) But there certainly can be no counter claim or set-off maintained by defendants where the liability to defendants exist as against any fewer than the whole copartnership firm. Then--Mrs. E. L. Kneisley is not a party to the bond. The bond, at most, is not the bond of the copartnership. Then, in a suit for a debt due to a firm, as in this case, a debt due from one or more of the defendants, individually, is not the subject of counterclaim of set-off. Payne v. Oshea, 84 Mo. 129; Lamb v. Brolaski, 38 Mo. 51; Weil v. Jones, 70 Mo. 560.

C. H. Montgomery and Frank Farlow for respondents.

(1) The contract and bond are one and the same instrument. They were both on the same sheet of paper, they were executed at the same time, and in regard to the same transaction, and the contract itself required the giving of such bond within ten days in the following language. Ramlose v. Surety Co., 100 Mo.App. 365; Lumber Co. v. Calhoun, 89 Mo.App. 209. (2) It thus clearly appearing that the bond and contract are one and the same instrument, the appellants cannot adopt the part beneficial to them, and repudiate the part which is not to their interest. They must adopt the whole contract, or repudiate the whole. Dry Goods Co. v. Bank, 81 Mo.App. 46; McLahlin v. Barker, 64 Mo.App. 525; Mechem's Agency, sec. 148; Fahy v. Grocery Co., 57 Mo.App. 73; Nelson v. Hirsh, 102 Mo.App. 513; Bank v. Hughlett, 84 Mo.App. 270; 2 Morawetz on Private Corporations, sec. 629. (3) Harve C. Kneisley was entrusted with absolute authority in the management of the business of the company. Bank v. Hughlett, 84 Mo.App. 268; Hayner v. Crow, 79 Mo. 296; McAlister v. Barnes, 35 Mo.App. 669. (4) The evidence shows, and the court found that there were no changes in the work or plans and specifications. Leavel v. Porter, 52 Mo.App. 641. (5) Bondsmen to indemnify against liens, cannot themselves maintain a lien. Handley v. Ward, 70 Mo.App. 148; Deitz v. Leete, 28 Mo.App. 540.

OPINION

BLAND, P. J.

--In 1900 plaintiffs were copartners engaged in the retail lumber business, in the city of Neosho, Mo., under the firm name of the Kneisley Lumber Company. Defendants Edward B. Stoddard and J. P. Hayward were partners under the firm name of the Edward B. Stoddard Company. Defendants G. F. C. Corl and Charles H. Murray were partners in the ice business. Defendant Murray has departed this life since the appeal was perfected and the suit has been revived in the name of his administratrix, who has entered her voluntary appearance. Corl and Murray had plans and specifications prepared by James Robinson, an architect, for a plant for the manufacture of artificial ice, to be erected in the city of Neosho, and advertised for sealed bids for the erection of said plant. The bids were received and opened on April 7, 1900. The Stoddard Company being the lowest bidder at $ 4,410.50, the contract was awarded to that firm. The Kneisley Lumber Company, under contract with the Stoddard Company, furnished $ 1,468.98 worth of lumber, which went into the construction of the building. The Stoddard Company failed to pay for the lumber, and the Kneisley Lumber Company filed a mechanics' lien upon the ice plant and the land upon which it is situated. The petition asks for a personal judgment against Stoddard and Hawyard and to foreclose and enforce plaintiffs' mechanics' lien against the ice plant. The venue of the cause was changed to the Greene Circuit Court. Stoddard was never served with process of summons and made no appearance. At the January term, 1907, of the Greene Circuit Court, the issues were submitted to the judge of the court sitting as a jury, who, after hearing the evidence, found for plaintiffs against Hawyard and rendered judgment against him for $ 1,468.98 principal and $ 566 interest, found the issues in favor of Corl and Murray, and that plaintiffs were not entitled to enforce their lien against the ice plant. Plaintiffs appealed from the judgment denying them a foreclosure of the lien. The building contract between Corl and Murray and the Stoddard Company was in writing. It contains the following provisions bearing upon and relevant to the questions in dispute:

"And the second parties, for and in consideration of the first parties, completely and faithfully executing the aforesaid work and furnishing all materials therefor, so as fully to carry out this contract, and the design according to its true spirit, meaning and intent and by and at the times mentioned, and to the full and complete satisfaction of James B. Robinson, superintendent, do hereby agree to pay to said parties the sum of four thousand four hundred and ten and 50-100 ($ 4,410.50) dollars, lawful money of the United States on certificates of superintendent from time to time as work progresses, to-wit, seventy-five per cent of the estimated value of the same, subject to the additions and reductions as hereinafter provided.

"Estimates to be made on the first and fifteenth days of each month by the superintendent of value of labor and materials furnished by contractor and payments made on the basis of these estimates, and the remainder on the satisfactory completion and acceptance of the entire work after the expiration of five days.

"It is agreed by the parties that twenty-five per cent of the contract price shall be held by the owner as security for the faithful completion of the work and may be applied under the direction of the superintendent in the liquidation of any damages under this contract, also furnishing to the owners a release from any liens or right of lien by bond herewith annexed within ten days from above date or if requested a sworn statement as required by law before commencing work on this contract. . . . .

"It is also further agreed that the said parties of the second part may make all alterations by adding, omitting, or deviating from the aforesaid plans, drawings or specifications or either of them which they may deem proper and the said architect shall advise, without impairing the validity of this contract, and in all such cases the architect shall value or appraise such alterations and add or deduct from the amount herein agreed to be paid to the said first parties the excess or deficiency occasioned by such alteration."

Corl and Murray exacted a bond of the Stoddard Company for the faithful performance of the contract. This bond was furnished and signed by the Kneisley Lumber Company as surety. One of the conditions of the bond is that the Stoddard Company "shall duly and promptly pay and discharge all indebtedness that may be incurred by the said Edward B. Stoddard Company in carrying out the said contract, and complete the same, free of all mechanics' liens."

The evidence for plaintiffs show that James Robinson, the architect, did not superintend the erection of the building and at no time gave an estimate of the value of material furnished or work done, nor did he advise any changes or deviations from the original plans and specifications. Robinson's evidence is that he had nothing to do with the building and did not go about it after the contract was let. Defendants' evidence tends to show that Robinson was a partner in a lumber company at Neosho which was a business rival of plaintiffs' company, and that Harve Kneisley, one of the plaintiffs, not only advised that Robinson should not be permitted to superintend the building, or make estimates, but insisted that he not be allowed to do so, and requested that Corl himself superintend the building, and Corl supervised the building as requested by Kneisley. The evidence shows that alterations and additions, amounting to $ 86.10 over and above the contract price were made. E. G. Carter, who had charge of the construction work for the Stoddard Company, testified that it was found desirable to make changes and they were made as the work progressed, by omitting some things called for by the specifications and by adding...