Neuwirth v. Moydell

• Decision Date: 02 March 1915
• Parties: LADISLAUS NEUWIRTH et al., Respondents, v. FRANK J. MOYDELL et al., Appellants
• Court: Missouri Court of Appeals

174 S.W. 206

188 Mo.App. 467

LADISLAUS NEUWIRTH et al., Respondents, v. FRANK J. MOYDELL et al., Appellants

Court of Appeals of Missouri, St. Louis

March 2, 1915

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.

REVERSED.

Judgment reversed.

Geo. W Lubke and Geo. W. Lubke. Jr. for appellant.

(1) The bond sued on, having been executed after the contract between the plaintiffs and Stefan Herich was executed and delivered and the work contemplated thereunder begun, is without consideration and void. Ring v. Kelly, 10 Mo.App. 411; Pfeiffer v. Kingsland, 25 Mo. 66; Lafayette Building Association v. Kleinhoffer, 40 Mo.App. 388. (2) The alterations and additions to the building in question made the building as constructed different from that contemplated by the contract between Herich and the plaintiffs and as called for in the specifications and plans, and having been made without the knowledge and consent of the defendants, sureties on Herich's bond, the defendants were thereby discharged from liability. Reissaus v. Whites, 128 Mo.App. 135; School District v. Green, 134 Mo.App. 421, 427; Utterson v. Elmore, 154 Mo.App. 646, 651. Any substantial change in the contract between Herich and the plaintiffs made without the consent of the defendants operates to discharge the defendants as sureties, even though the change may be beneficial to Herich and the defendants. Bauer v. Cabanne, 105 Mo. 110; Beers v. Wolf, 116 Mo. 179; Kane v. Thuener, 62 Mo.App. 69. The provision in the contract that, in the event additions and changes in the building should be made while the building was in progress of construction, that the cost of such changes should be agreed upon in writing between the plaintiffs and Herich, and if not so agreed upon the building was to be completed according to the original plans and specifications was for the benefit of the defendants as well as the parties to the contract. The changes in the building made prior to August 29, 1910, were made in utter disregard of this provision of the contract and the defendants were thereby discharged as sureties. Chapman v. Eneberg, 95 Mo.App. 127. The provision of the bond sued on by which the defendants waived the right to be notified of changes and alterations in the building, provided the cost of the same did not exceed eight dollars, was effective only to the extent of the amount of changes thereby specified. If the cost of alterations and additions exceeded eight dollars the obligation was the same as if this provision were entirely absent from the bond. Bagwell v. American Surety Company, 102 Mo.App. 707. (3) The provisions of the contract between Herich and the plaintiffs regarding the manner and times at which the moneys to be paid to Herich thereunder were to be paid were a security to the defendants and any change in the time of payment without their knowledge and consent operated to discharge them as sureties. Harris v. Taylor, 150 Mo.App. 291; Taylor v. Jetter, 23 Mo. 244; Evans v. Graden, 125 Mo. 172. (4) The judgment is clearly excessive, because a recovery was had for the commission paid for the loan with which to pay off the claims against the building made by the plaintiffs and the cost of drawing and recording of the deed of trust securing the same and attorneys' fees. The first of these items is clearly not within the purview of the bond. The second of these items was not proved and the evidence on the last of these items shows that only seventy-five dollars has been expended by the plaintiffs for attorneys' fees in settling the lien claims. No recovery could be had in this suit for attorneys' fees for bringing it. In addition the $ 120.69 shown to have been paid to Cunningham Bros. on account of the plumbing on November 3, 1910, was not paid at the direction of Herich or with the consent and knowledge of the defendants. This payment is therefore purely a voluntary one and no recovery could be had for the same in this suit.

Jno. L. Corley for respondents.

(1) There was an agreement to give a bond at the time the contract was entered into and this was sufficient consideration for the bond given later. Whether the work contemplated thereunder was begun before the bond was given does not affect the consideration. Overbeck v. Mayer, 59 Mo.App. 289; Fullerton Lumber Co. v. Calhoun, 89 Mo. 216. (2) The defendants agreed in their bond to be unconditionally bound for the faithful performance of the contract and for all changes and alterations therein to the amount of the contract price, hence the changes that were made which did not involve any expenditure cannot be complained of by these defendants. There is no evidence that the substituting of metal studding and laths in one of the partitions resulted in any saving to Herich; there is no evidence that the substitution of corrugated iron ceilings for plaster ceilings entailed any expense on Herich; there is no evidence that the bricklayer did not repair the front sidewalk; there is no evidence that the things marked as "extras" on Cunningham's bill were extras at all or were furnished to or by the contractor; the changing of the partition on the second floor and the changing of the double doors to a little door cost eight dollars, and there is some evidence that this change was made while the building was being constructed. There were no other changes, and these changes had no effect on the sureties obligation, as they came within the contract price and the extra amount stipulated in the bond. Bagwell v. Surety Co., 102 Mo. 707. (3) A subsequent independent agreement of the principal to do other and different work for the same person would not discharge the surety; because in such case the contract of the surety would remain the same. The trial court found that the additional work complained of was done under a subsequent, independent agreement and the whole record shows that the finding of the trial court was to the effect that it was other and different work from that contemplated by the contract sued on, hence the contract of the sureties remains the same. Beers v. Wolf, 116 Mo. 179-187; Leavel v. Porter, 52 Mo.App. 641; Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629; Board of Education v. National Surety Co., 183 Mo. 166-179; Fullerton Lumber Mo. v. Gates, 89 Mo.App. 208; Rule v. Anderson et al., 160 Mo.App. 356; Hinton v. Stanton, 165 S.W. 299. (4) There is no substantial evidence that the first payments were not made in accordance with the terms of the contract. The court gave the instruction asked by the defendants upon the question of payment and there is substantial evidence that the payments were properly made. The court sat as a trier of the facts, and this court will not disturb the finding where there is substantial evidence upon which said finding was based. (5) If there was a deviation in the matter of payment on the last $ 1000 the matter of the sureties liability or nonliability turns upon the question as to whether the deviation by the owner was material to the sureties risk. Martin et al v. Whites & Cox, 128 Mo.App. 117. The last thousand dollars was held for the purpose of meeting claims against the building. It was not only the right but the duty of the owner to use this money in this way. Harris v. Taylor, 150 Mo.App. 296.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit against the sureties alone on a builder's bond, for damages accrued through a breach of the building contract. Plaintiffs recovered and defendants prosecute the appeal.

Plaintiff Ladislaus Neuwirth is the pastor and his coplaintiffs are trustees of the Roman Catholic Slovak Church of the Holy Trinity in St. Louis, and defendants, Moydell and Piskulic, are sureties on the contractor's bond. It appears that the church, desiring to erect a parish school building on the south side of Rutger street, between Eleventh and Thirteenth streets, contracted with Stephen Harik, a builder, to furnish the materials and construct the building, for the consideration of $ 6000. The contract was entered into on the first day of June, 1910, and the bond in suit was executed by Harik, as principal, together with the two defendants, as sureties, in the penal sum of $ 3000, contemporaneously therewith. Harik failed to complete the building and the plaintiffs were required to pay out something more than $ 1000 in excess of the contract price in discharge of lien claims against it. This suit proceeds against the sureties to compensate the loss entailed through the default of Harik, the builder.

Among other things, the building contract makes the plans and specifications for the building parcel thereof, and the bond is conditioned for the faithful performance of the contract. Defendants, in their answer, set forth numerous changes and alterations in the construction of the building, which were made without regard to the provisions of the contract and at variance from the specifications, without their knowledge or consent, and assert that they are discharged as sureties because of these. It is entirely clear that, while all of the matters and things set forth in the answer as changes going to destroy the identity of the contract may not be regarded as such, others do so. All of those changes are detailed in plaintiff's evidence and stand conceded in the case, in that the parish priest, Reverend Ladislaus Neuwirth, who, it appears, was the active agent of plaintiffs, frankly testified to each.

The building contemplated is a two-story-and-basement brick school building, and the contract includes, too, the repair of certain sidewalks about it. It appears that, while the building was in course of construction, a city inspector interposed an objection to the sufficiency of one of the...