National Surety Company v. Long

• Decision Date: 20 January 1908
• Citation: 107 S.W. 384,85 Ark. 158
• Parties: NATIONAL SURETY COMPANY v. LONG
• Court: Arkansas Supreme Court

107 S.W. 384

85 Ark. 158

NATIONAL SURETY COMPANY v. LONG

Supreme Court of Arkansas

January 20, 1908

Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge affirmed.

Affirmed.

W. S McCain, for appellant.

The decision of this court on former appeal is the law of this case, and the case was then reversed, on the grounds, first that appellee had made payments to Humphreys without estimates having been made by an architect or superintendent, and second, that he had paid $ 4,908.59 whereas, under the terms of the contract, $ 3,750.00 was the maximum amount he was authorized to pay--the building being only three-fourths completed. As there found, the true standard of value in making the estimates is the contract price, and that question can not now be renewed. 69 A.D. 462; 31 N.Y.S. 283; 79 Ark. 475.

S. H. Mann, P. D. McCulloch and Murphy, Coleman & Lewis, for appellee.

With reference to payments, the contract plainly states that "installments are to be seventy-five per cent. of the value of the work done and materials furnished and incorporated in the building." In construing the contract the words used are to be taken in their ordinary and popular sense, unless the context shows that they are to be understood in a different sense. In this case, if the contract price had been intended, the parties could easily have expressed it so. Black on Interpretation, 15; 9 Cyc. 578, 583.

The clause with reference to payments provides for two separate things, i. e. installment payments during the progress of the work, and final payment on completion of the building, and there are two distinct limitations as to payment, one that three-fourths of the value of work and materials shall be paid as the work progresses, and the other that not exceeding three-fourths of the contract price shall be paid before the building is completed. To confound the language used in one stipulation with that used in the other would be to make a contract for the parties which they themselves did not make. 119 Mo. 397. The fact that on former appeal the cause was remanded for a new trial, instead of dismissing it, makes it plain that it was not meant to decide that the estimates for installments due should be based on the contract price.

2. The contract did not require Long to employ an architect or superintendent, and it was competent for him to act as such himself. And the fact that payments were made without the certificate of an architect would not relieve the surety unless the payments exceeded the amount stipulated in the contract and bond. 148 N.Y. 241.

HILL, C. J. Mr. Justice BATTLE dissents., Mr. Justice McCULLOCH was disqualified.

OPINION

HILL, C. J.

This is the second appeal of this case. The judgment heretofore obtained by Long against the Surety Company was reversed July 2, 1906, the case being reported in 79 Ark. 523 (National Surety Company v. Long.) Every question raised by the appellant now save one was disposed of in the former appeal, either expressly or sub silentio. The majority of the court then found on the facts as developed in that trial that Long had violated this clause of the contract, viz: "The said party of the first part agrees to pay to the party of the second part for said work the sum of six thousand six hundred dollars ($ 6,600), the contract price, to be paid in installments according to written estimates to be made by the architect or the superintendent as the work progresses, payments to be made not oftener than as allowed in the bond, and said installments are to be seventy-five per cent. of the value of the work done and materials furnished and incorporated in the building, the remaining twenty-five per cent. of said contract price to be paid by the party of the first part to the party of the second part in ten days after the building is completed and accepted."

Mr. Special Judge CARMICHAEL, speaking for the majority of the court, showed from the evidence, as they understood it, that Long had overpaid the contract price, and then took up the overpayments for work, labor and material in the building, and said that the payments made were "more than 100 per cent. of the work, labor and material incorporated into the building and material on the ground."

Concluding the discussion of this phase of the case, he continues: "The evidence is not sufficient on this point to sustain the verdict. Where there is nothing to do but make additions of figures, and the verdict is contrary to the results so obtained, the verdict is not supported by the evidence."

The opinion shows that the case was reversed upon this point and one other. On rehearing, a majority of the court was against the opinion of the special judge on the other point, and left only a...