Miller-Jones Furniture Company v. Fort Smith Ice & Cold Storage Company
| Decision Date | 18 March 1899 |
| Citation | 50 S.W. 508,66 Ark. 287 |
| Parties | MILLER-JONES FURNITURE COMPANY v. FORT SMITH ICE & COLD STORAGE COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Sebastian County, Ft. Smith District, EDGAR E. BRYANT Judge.
STATEMENT BY THE COURT.
The Fort Smith Ice & Cold Storage Company, desiring to have a building erected for cold storage and other purposes contracted with one Wickshire for the erection of the same. The building was to be one story high, and constructed of brick. Wickshire was to furnish all material except the brick, and was to receive the sum of $ 7,875 for constructing same. He agreed to finish the building on or before the 14th day of October, 1895, and that, if he failed to complete the building at that time, he would pay the owner, by way of liquidated damages, the sum of $ 25 for each day thereafter the building remained incomplete. The contract also contained the following provisions: "It is further agreed that the said party of the second part may make any alterations deviations, additions or omissions from the aforesaid plans specifications and drawings, or either of them, which they shall deem proper, and the said architect shall advise, without affecting or making void this contract; and in all such cases the architect shall value or appraise such alterations and add to or deduct from the amount heretofore agreed to be paid to the said party of the first part the excess or deficiency occasioned by such alterations." Wickshire gave bond for the performance of his contract, with the Miller-Jones Furniture Company as surety. He afterwards, about the 1st of October, 1895, made a supplemental contract with the Cold Storage Company, by which he agreed to make the building two stories high instead of one, and was to receive an additional consideration of $ 1,175. The Furniture Company, surety on the bond for first contract, was told by Wickshire on the 1st of October, 1895, that he and the Cold Storage Company had agreed to make the building one story higher, and on that day the Furniture Company, at request of Wickshire, ordered material to be used in the construction of said second story. The price of material furnished Wickshire by the Furniture Company, and used in the construction of said building, amounted in all to $ 3,260.86, of which Wickshire paid $ 2,000, leaving a balance of $ 1,260.86 due the Furniture Company. The Furniture Company filed its lien for said sum against the building of the Cold Storage Company, and afterwards brought this action against Wickshire and said Cold Storage Company to enforce said lien and recover said debt. The Cold Storage Company filed an answer and counter-claim, asking judgment against Wickshire and the plaintiff as surety for delay in completing the building.
The circuit judge, sitting as a jury, found that Wickshire was indebted to the plaintiff Furniture Company in the sum of $ 1,260.86 for materials furnished; that the defendant Cold Storage Company was entitled to $ 600 damages against Wickshire and plaintiff as surety on his bond for delay in completing the cold storage rooms, and further that plaintiff was entitled to a judgment against Wickshire for $ 1,260.86, and to a lien on building for $ 660.86, balance of debt after deducting damages allowed on counterclaim,--and gave judgment accordingly.
Judgment reversed and cause remanded.
H. C. Mechem and F. A. Youmans, for appellant.
Any change in the contract releases the surety. 9 Wheat. 702; 23 Mo. 244; 11 N.E. 232; 137 N.Y. 307; 31 N.W. 862; 36 A. 400. The burden was on appellee to show, not mere knowledge, but actual consent of the surety to the change. 27 N.Y.S. 1097; 55 Ga. 656; 4 Pa.St. 348; 19 Pa.St. 119; 6 Mon. (Ky.) 567; 12 Ga. 271. The act of the surety in subsequently furnishing material for the addition called for in the altered contract was not a waiver of its discharge. The changes provided for in the substituted contract were not such as the owner was authorized to make under the stipulation for changes in the old contract. 46 N.W. 1020; 52 N.W. 1106; 63 N.W. 17; 7 Mo.App. 283. Appellant is entitled to a lien for materials under the second contract. 49 Cal. 131.
Hill & Brizzolara, for appellee.
When a contract provides in advance for changes, the surety is not released by the making of such changes. 42 N.E. 669; 52 N.W. 165; 7 Mo.App. 283; 48 Kan. 756; 46 N.W. 1018; 8 So. 509. Since the surety is not placed in any different position, he is not discharged. 20 Wall. 165. The appellant is not estopped to plead its discharge, because of its subsequent acts and silence. 50 Ark. 458; 11 Ark. 249; 33 Ark. 465.
RIDDICK, J., (after stating the facts.)
The only question presented by this appeal is whether the Miller-Jones Furniture Company, surety on the bond of Wickshire for the performance of his contract to erect a building for the Fort Smith Ice & Cold Storage Company, was discharged by the subsequent alteration of the contract. The Cold Storage Company contends that the supplemental contract did not discharge the surety, for the reason that such supplemental contract was within the scope of the first contract, and was therefore assented to by the Furniture Company at the time it signed the bond. This contention of the Cold Storage...
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