Nowell v. Mode

• Decision Date: 25 May 1908
• Citation: 111 S.W. 641,132 Mo. App. 232
• Parties: NOWELL v. MODE et al.
• Court: Missouri Court of Appeals

111 S.W. 641

132 Mo. App. 232

NOWELL v. MODE et al.

Kansas City Court of Appeals. Missouri.

May 25, 1908.

Rehearing Denied June 29, 1908.

1. PLEADING — PETITION — DEFECTS — CURE BY VERDICT.

Where there is no demurrer to the petition in an action, and defendant answers to the merits, loose and defective statements in the petition of some of the elemental facts of the cause of action are cured by verdict.

2. MECHANICS' LIENS — INDEMNITY AGAINST LIENS — BONDS — BREACH — PLEADING.

Where a building contract and indemnity bond undertake affirmatively to deliver to plaintiff a completed building by a time specified, and to hold him harmless from pecuniary loss on account of unpaid demands for labor and materials for which liens might be enforced against the property, a petition, in an action on the bond, not demurred to, alleging facts showing a breach of the covenants in effect is a sufficient allegation of the breach of the bond,

though no specific allegation is made that defendant failed to reimburse plaintiff for his damages and outlay on account of mechanics' liens, since a petition not attacked by demurrer will be construed most liberally in favor of the pleader.

3. TRIAL — VERDICT — DETERMINATION OF ISSUES — COUNTERCLAIM.

In an action on a bond of indemnity to recover for mechanics' liens and other outlays suffered by default of defendant under a building contract, defendant filed a counterclaim for the unpaid contract price and for extra work and for damages from delays caused by plaintiff. The evidence tended to show that defendant was entitled to recover for extra work and damages from delay, and also showed that the amount paid by plaintiff for mechanics' liens and other outlays exceeded the amount due on the contract. The jury were instructed on the issues raised by both parties. The verdict was for an amount less than the evidence showed plaintiff entitled to. Held, that under the facts the jury evidently determined all the issues presented to them, and the judgment would not be reversed because no mention was made of the counterclaim in their verdict.

4. PRINCIPAL AND SURETY — BUILDING CONTRACT — DISCHARGE OF SURETY — ALTERATION OF CONTRACT.

Though a surety on a bond to secure a building contract will be released from his obligation by any substantial alteration of the contract between the owner and contractor, except where such alteration is expressly authorized, an alteration, made on oral authority of the architect, in a stairway of a building, caused by a technical error in the drawings, is not such a substantial alteration as to release the surety, where the specifications, made a part of the contract, provided that the drawings, etc., were a part of the specifications, and that when any error appeared in either the drawings or specifications the architect, on notification, might direct that it be corrected.

5. MECHANICS' LIENS — INDEMNITY AGAINST LIENS — EVIDENCE — JUDGMENT AGAINST INDEMNITEE.

In an action on a bond indemnifying plaintiff against unpaid mechanics' liens, judgments establishing the mechanics' liens against plaintiff are competent evidence, even against the surety on the bond.

6. SAME — BOND — BREACH — PLEADING AND PROOF.

A petition on a bond indemnifying plaintiff for defaults of a building contractor, alleging that, by reason of the noncompletion of the building in the time called for, plaintiff was damaged in a stated sum, and that, by the failure to construct and finish the building in the manner required by the contract, plaintiff was damaged in a further sum, is broad enough to admit of proof of loss of rental value on account of the breach of the contract.

7. PLEADING — AMENDMENT AFTER JUDGMENT.

A petition on a bond of a building contractor to recover money paid out by plaintiff for mechanics' liens and other outlays caused by the breach of the contract may be amended, after judgment for plaintiff, to make it conform more accurately to the proof and instructions.

Appeal from Circuit Court, Boone County; A. W. Waller, Judge.

Action by W. B. Nowell against Benjamin F. Mode and the Title Guaranty & Trust Company of Scranton, Pa., on a building contractor's bond. From a judgment for plaintiff, defendants appeal. Affirmed.

H. D. Murray and F. G. Harris, for appellant B. F. Mode. E. W. Hinton and Thos. H. Sprinkle, for appellant Title Guaranty & Trust Co. Charles J. Walker and A. W. Walker, for respondent.

JOHNSON, J.

Defendant Mode contracted to erect a building on premises owned by plaintiff in the city of Columbia for the price of $12,850, and executed and delivered to plaintiff a bond in the penal sum of $5,000 for the performance of the contract. This action was brought on the bond by the obligee against Mode, the principal obligor, and the Title Guaranty & Trust Company of Scranton, Pa., surety, to recover damages alleged to have been sustained by plaintiff in consequence of certain breaches of the obligation. Verdict and judgment were for plaintiff in the sum of $1,000, and defendants appealed.

First. Defendants insist that the petition fails to state a cause of action for the reason that a breach of the bond is not alleged. They argue that the undertaking was one of indemnity, and that to constitute a cause of action thereon it was incumbent on plaintiff to plead and prove that Mode (the contractor) "broke the building contract in some one or more particulars, that Newell (the owner) suffered pecuniary loss therefrom, and that Mode failed to indemnify him for such loss." This objection was not made the subject of a demurrer to the petition, but defendants answered to the merits and first raised the point during the progress of the trial. In such situation, the question for us to decide is whether the petition omits to state one or more of the essential elements of the cause of action intended to be asserted. However loose or defective the statement of some of the elemental facts may be, objection to such defects must be raised by demurrer to the petition, and, if not thus raised, should be held to be cured by verdict. The rule is well expressed by the St. Louis Court of Appeals in Thomasson v. Insurance Co., 114 Mo. App. 109, 89 S. W. 564, 1135, where it is said: "There is a marked distinction in our practice between a petition which defectively states a cause of action and one which states no cause of action at all. A defective cause of action is one thing, and a defectively stated cause of action is another. A petition stating a cause of action defectively is good after judgment" — citing Malone v. Ins. Co., 71 Mo. App. 1; Edmondson v. Phillips, 73 Mo. 59; State ex rel. v. Rush, 77 Mo. 586; Bank v. Leyser, 116 Mo. 511, 22 S. W. 504.

After referring to the contract between Nowell and Mode for the construction of the building, the bond thus states the obligation assumed by the obligors: "Now, therefore, the condition of the foregoing obligation is such that if the said principal shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of the said contract on the part of the said principal to be performed, then this obligation shall be void; otherwise to remain in full force and effect." The building contract required defendant Mode to construct the building in accordance with plans and specifications prepared by the superintending architect and to complete the work on or before October 1, 1904. It provided "that the said party of the second part (the contractor) shall forfeit the sum of $20.00 liquidated damages for every day expiring after that day before the completion and delivery of said building as aforesaid to the said party of the first part, and this condition not to be made or rendered void by any alteration or additional work being performed, but in such case the time shall be extended as shall be deemed proper by the architect and agreed to by the said party of the second part, at the time of such extension." Terms of payment of the contract price then were stated, followed by this stipulation: "Provided that the wages of the artisans and laborers, and all those employed by, or furnishing materials to the said party of the second part, shall have been paid and satisfied, so that they shall have no lien upon the building or works, and in case the said party of the second part shall fail to pay and satisfy all and every claim against said building as aforesaid, the said party of the first part may, if he deems proper so to do, retain from the moneys due and coming to the said party of the second part, enough to pay and satisfy such claims and demands, it being, however, understood that nothing herein contained shall in any way be construed as impairing the right of the said party of the first part to hold the said party of the second part, or securities, liable on his bond for any breach of the conditions of the same."

It is alleged in the petition that the contractor did not complete the building by October 1, 1904, or at any time thereafter, but left it unfinished, and that on December 18, 1904, plaintiff took possession of the premises and was compelled to finish the building at his own expense. Then follow a detailed statement of various mechanics' liens filed against the property for labor and materials furnished for the building under contracts with defendant, and the allegations that plaintiff was compelled to pay these judgments, together with court costs, amounting in all to $3,069.04, and "that under the provisions of said builders' contract he retained the final payment of $2,350, which was payable to the said defendant, Benjamin F. Mode, and applied said amount on the payment of the above-mentioned judgments. * * * That none of the breaches of said contract by the defendant above mentioned were occasioned by an act of God, or public enemies or mobs, or riots, or civil commotion or by employés leaving the work being done...