Matthews v. Hill

• Decision Date: 21 September 1926
• Docket Number: No. 19477.,19477.
• Citation: 287 S.W. 789
• Parties: MATTHEWS et al. v. HILL.
• Court: Missouri Court of Appeals

287 S.W. 789

MATTHEWS et al. v. HILL.

No. 19477.

St. Louis Court of Appeals. Missouri.

September 21, 1926.

Rehearing Denied November 17, 1926.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Joseph R. Matthews and others, Trustees for and Members of the Finance Committee of the Soldiers' and Sailors' Memorial Association of Kirkwood, Mo., against William T. Hill and Erhardt Siebert. Plaintiffs dismissed as to Siebert, and from judgment rendered for Hill, plaintiffs appeal. Affirmed.

W. K. Koerner, of St. Louis, for appellants.,

Wilson & Trueblood, of St. Louis, for respondent.

BENNICK, C.

This is an action against William T. Hill as surety on a bond conditioned upon the faithful performance by one Erhardt Siebert, originally a codefendant, of a contract entered into between plaintiff and said Siebert. The amended petition filed by plaintiffs is as follows:

"Plaintiffs state that heretofore, to wit, on or about the 26th day of October, 1920, they entered into a contract with defendant Erhardt Siebert to design, construct, and erect a soldiers' and sailors' monument on Argonne drive, immediately east of the intersection of Argonne drive and Kirkwood road, in said city of Kirkwood, said monument to be of the character and description as specified in the contract herewith filed and to be erected upon a base of solid gray granite; that it was provided in said contract that on the face of the granite base of said monument should be a bronze open book, in relief, on one page of which, in relief lettering, should be the names of the soldiers and sailors of the Kirkwood school district who lost their lives in the World War, and on the opposite page of the book should be a suitable inscription, the form and contents of which should be furnished by a committee of said association to be afterwards appointed; that on the sides of said base there should be placed two cast bronze tablets on which there should be the names of the service men of Kirkwood school district who served in said war; that by the terms of said contract said Siebert agreed to furnish all labor and materials, pay all costs and expenses necessary for the completion and erection of said monument, and to have it erected on or before July 1, 1921; that by the terms of said contract it was agreed that said Siebert should be paid a total sum of $10,000 in payments as follows: * * *

"Plaintiffs state that after said contract was signed on said 26th day of October, 1920, it was mutually agreed between said Siebert and these plaintiffs that the terms should be modified in that there should be omitted from the sides of the base of the monument the two cast bronze tablets on which should be in relief lettering the names of the service men from the Kirkwood school district who served in the war, and that in consideration thereof the amount due said Siebert on account of said contract should be reduced from $10,000 to $9,500.

"Plaintiffs further allege that there was attached to said contract an obligation signed by said defendants, Erhardt Siebert as principal and William T. Hill as surety, whereby the said principal and surety bound themselves to the said Soldiers' and Sailors' Memorial Association of Kirkwood, Mo., and its duly appointed finance committee, composed of Joseph R. Matthews, P. C. Bopp, E. A. Holscher, Mrs. Herman Schroeder, and Davis Biggs, or their successors, and which committee was acting for the use and benefit of the citizens of Kirkwood who have contributed or who may hereafter contribute to the memorial fund of the soldiers' and sailors' monument, in the penal sum of $10,000 lawful money of the United States, conditioned that, in the event the said Erhardt Siebert shall faithfully perform as and when they should be performed each and all the provisions and conditions of the foregoing contract entered into between said Siebert and said association and said finance committee, then the said bond to be void, otherwise to remain in full force. * * *

"Plaintiffs state that the aforesaid modification of said contract, whereby the two cast bronze tablets were omitted from the sides of the base of said monument, and the amount to be paid said Siebert was reduced from $10,000 to $9,500, was wholly immaterial and unprejudicial to said Siebert and said Hill, his aforesaid surety; that said bronze tablets were not to be manufactured or put in place by said Siebert himself, and the lettering thereon was not to be inscribed by said Siebert himself, but said tablets were to be manufactured and put in place and the lettering thereon was to be inscribed by third parties at a cost to said Siebert of at least the sum of $500; that said Siebert could in no way profit by the work of manufacturing and placing the said tablets in place and inscribing the lettering thereon, and sustained no loss and could sustain no loss by reason of the omission of said work and the reduction of said sum to be paid to him; that so far as said tablets and lettering were concerned said Siebert was in substance merely the agent of plaintiffs in having said work done and paying therefor.

"And for breach of said bond plaintiffs state that the said defendant Erhardt Siebert has neglected, failed, and refused to perform the conditions and provisions of said contract, in that said Siebert has failed and refused to furnish and erect said monument as provided by the terms of said contract, and has so notified these plaintiffs. Plaintiffs state that under the terms of the contract said defendant Siebert has been paid the sum of $6,666 for which plaintiffs have received nothing.

"Plaintiffs state that the said breach of the conditions of said bond and of said contract by defendant Siebert occurred and was committed before the time had arrived when Siebert was to order said bronze tablets or to do anything with regard to having same made or the lettering thereon inscribed; that said breach was in no way connected with or affected by the omission of said tablets and lettering or the reduction of $500 in the price to be paid.

"Plaintiffs state that the said monument should have been erected in place not later than May 30, 1922; that on the aforesaid date demand was made upon said defendants to comply with the terms of said contract, which they have failed and neglected to do.

"Wherefore, plaintiffs pray judgment for the sum of $10,000, the penalty of said bond, and that execution issue for the sum of $6,666 with interest from May 30, 1922, the amount of damages suffered by plaintiffs in the premises, and for costs."

On motion of defendant Hill the entire fourth paragraph of the petition was stricken out by the court, whereupon defendant Hill demurred to the petition, which demurrer was sustained. Thereafter plaintiffs dismissed as to defendant Siebert and declined to plead further as to defendant Hill, whereupon judgment was rendered for the latter, from which plaintiffs have appealed.

Plaintiffs first assign as error the action of the court in sustaining the motion to strike out the following paragraph of the amended petition:

"Plaintiffs state that the aforesaid modification of said contract whereby the two cast bronze tablets were omitted from the sides of the base of said monument, and the amount to be paid said Siebert was reduced from $10,0000, to $9,500, was wholly immaterial and unprejudicial to said Siebert and said Hill, his aforesaid surety; that said bronze tablets were not to be manufactured or put in place by said Siebert himself, and the lettering thereon was not to be inscribed by said Siebert himself, but said tablets were to be manufactured and put in place and the lettering thereon was to be inscribed by third parties at a cost to said Siebert of at least the sum of $500; that said Siebert could in no way profit by the work of manufacturing and placing the said tablets in place and...