McLennan v. Wellington

• Decision Date: 11 June 1892
• Citation: 30 P. 183,48 Kan. 756
• Parties: A. N. MCLENNAN et al. v. E. W. WELLINGTON et al
• Court: Kansas Supreme Court

30 P. 183

48 Kan. 756

A. N. MCLENNAN et al. v. E. W. WELLINGTON et al

Supreme Court of Kansas

June 11, 1892

Error from Ellsworth District Court.

ACTION by Wellington and another against Allen, as principal, and McLennan and another, as sureties, on a certain bond. Judgment for plaintiffs, September 30, 1889. The defendant sureties allege error, and bring the case to this court.

Judgment affirmed.

Ira E Lloyd, for plaintiffs in error.

Garver & Bond, for defendants in error.

GREEN C. All the Justices concurring.

OPINION

GREEN, C.:

This was an action brought by Wellington & Brundage against L L. Allen as principal, and A. N. McLennan and G. H. Luedde as sureties, on a bond executed by the plaintiffs in error and conditioned that the principal would faithfully perform a contract which Allen had entered into with the defendants in error, for the construction of certain parts of a building. The bond was in the sum of $ 2,000. The condition reads as follows:

"Whereas, L. L. Allen has contracted with Messrs. Wellington & Brundage to execute, construct and complete the work specified in contract for the sum of $ 2,474, by a contract dated July 16, 1887, hereto annexed; and the condition of this obligation is, that if the said L. L. Allen shall duly perform said contract, then this obligation is to be void; but if otherwise, the same shall be and remain in full force and virtue."

The contract between the parties was in writing, and provided that the work should be done "agreeably to the plans, drawings and specifications prepared for said work by Abbott & Hohenschild, architects, to the satisfaction and under the direction and personal supervision of Abbott & Hohenschild, architects." Before the contract and bond were signed the architects named had prepared plans, drawings and specifications. The contract contained the following provision in regard to changes and alterations in the work:

"Should the proprietors, at any time during the progress of said work, require any alterations, or deviations from, or additions to, or omissions, in the said contract, specifications, or plans, they shall have the right and power to make such change, or changes, and the same shall in no way injuriously affect or make void the [this] contract, but the difference for work omitted shall be deducted from the amount of the contract by a fair and reasonable valuation; and for additional work required in alterations, the amount shall be agreed upon before commencing additions."

To the petition of the plaintiffs below the sureties upon the bond answered that the plans and specifications agreed upon had been submitted to them before they signed the bond; that after they executed the bond the parties to the building contract, without the knowledge of the bondsmen, destroyed the plans and specifications and substituted new and entirely different plans and specifications in place of the original plans submitted to the sureties, and that the substituted plans were for a larger and more expensive building than proposed in the original plans. It was also alleged that the contract had been changed by the parties so that Allen was to be paid a reasonable price for his labor, and Wellington & Brundage were to furnish material and assume control of the work of constructing the building themselves. The case was sent to a referee, who reported, among other things --

"That on July 16, 1887, said plans and specifications, having numerous alterations noted thereon by erasures and interlineations, at the suggestion of the architects and with the consent of plaintiffs and L. L. Allen, were taken by said architects to their office in Salina, Kan., to be copied, where they remained about one week; that said original specifications as soon as copied were destroyed in said architects' office; that on return of said specifications to Ellsworth, so copied as aforesaid, numerous additions were made thereto by Mr. Abbott, architect, in the presence of L. L. Allen; that said additions were immaterial, and said Allen then signed said specifications and proceeded with the construction of, and constructed said building thereunder, a copy of which specifications is attached to plaintiffs' petition; that thereafter a material change was made in the plan of said building by moving the north wall of same out two inches -- that is, the brick wall to be built on the center of the stone basement, and being four inches narrower, was moved out flush on north side; that said A. N. McLennan and G. H. Luedde had no knowledge of the destruction of said original specifications, or of any alteration in the plans and specifications."

As a conclusion of law, the referee found that the destruction of a material portion of the plans and specifications, and the substitution of...