Paisner v. Renaud

• Decision Date: 15 April 1959
• Citation: 149 A.2d 867,102 N.H. 27
• Parties: Gerald M. PAISNER and another, v. Valmore RENAUD and another.
• Court: New Hampshire Supreme Court

Page 867

149 A.2d 867

102 N.H. 27

Gerald M. PAISNER and another, v. Valmore RENAUD and another.

Supreme Court of New Hampshire.

Argued Jan. 6, 1959.

Decided April 7, 1959.

Rehearing Denied April 15, 1959.

Burns, Calderwood, Bryant & Hinchey, Robert E. Hinchey, Dover, for plaintiffs.

Charles F. Hartnett, Fisher, Parsons & Moran, Dover, and Paul B. Urion, Rochester, for defendants.

LAMPRON, Justice.

The specifications, which were expressly made a part of the agreement between the owners and the contractor, required the latter to furnish, on request, a completion bond 'guaranteeing the completion of the work and materials involved in this contract.' This bond was to be 'retained by him during the period of the responsibility of the contractor under Guarantee.' The guarantee clause provided that 'the contractor shall guarantee the work for a period of One Year from the date of acceptance, and during that period shall make good at his own expense any faults or imperfections that arise due to defects in materials or workmanship.'

Such a bond was furnished with defendant Renaud as principal and defendant Century Indemnity Company (hereinafter referred to as Company) as surety. It guaranteed the performance of the contract between the Paisners and Renaud which was referred to and made a part of the bond. The conditions of the bond were 'that if Principal shall indemnify the obligee (s) against any loss or damage directly arising by reason of the failure of Principal to faithfully perform said contract * * * then this obligation to be null and void, otherwise to remain in full force and effect.'

When as in this case, a bond refers to and is conditioned on the performance of a specific agreement the latter's terms become a part of the bond and the instruments should be read together as a whole. Kenney v. Barry, 86 N.H. 35, 36, 162 A. 774; 9 Appleman, Insurance Law and Practice, s. 5276, p. 70. See Bogosian v. Fine, 99 N.H. 340, 344, 111 A.2d 190. By its terms the bond insured the faithful performance of the contract by Renaud. Thus the liability of the Company as surety is co-extensive with that of the principal Renaud under the contract and specifications. Lavigne v. Lavigne, 87 N.H. 223, 225, 176 A. 282; 9 Am.Jur., Building and Construction Contracts, s. 88, p. 57; 9 Appleman, op. cit. supra at p. 72.

There was evidence that on the evening of November 26, 1952, hot water leaked from a convector in the living room of plaintiffs' home covering with water the floors in it, the dining room and the front hall. The floors, the wall to wall carpet and the underpadding in those rooms were damaged thereby. There was also evidence that the leak happened because 'this particular joint in question had been poorly soldered.' It could be found on the record that the damage arose 'due to defects in * * * workmanship.' Under the previously mentioned guarantee clause in the specifications the contractor was to 'make good at his own expense any faults or imperfections that arise due to such defects' within one year from the date of acceptance of the house by the plaintiffs.

In the general agreement pertaining to the construction of this house executed by the parties, Renaud was expressly designated as the contractor. The above guarantee clause was contained in that part of the specifications which applied to the contract generally and by its terms obligated the contractor. The Court ruled correctly that even though one McCoole, a plumbing and heating contractor, installed the heating system Renaud as the general contractor was the party bound by the above guarantee. Perry v. Champlain Oil Company, 99 N.H. 451, 453, 114 A.2d 885.

In ascertaining the meaning of this clause 'the true test is, what did the parties mean by the language they employed' Kendall v. Green, 67 N.H. 557, 558, 42 A. 178; Restatement, Contracts, s. 226. To arrive at the answer the agreement and the specifications should be examined as a whole (Smith v. Furbish, 68 N.H. 123, 129, 44 A. 398, 47 L.R.A. 226), and the language used given the meaning which would usually be given to it by persons in general reading and acting upon it. City of Dover v. Standard Acc. Insurance Co., 92 N.H. 59, 61, 24 A.2d 496; Citizens Nat. Bank v. Hermsdorf, 96 N.H. 389, 393, 77 A.2d 862.

By the specifications, under a clause entitled 'Protection of Public,' the contractor was required to 'provide and maintain all legal and necessary guards etc. * * * to protect fully all persons from loss, damage or injury to either their persons or property' and 'be wholly responsible should any loss damage or injury occur through the neglect, carelessness or incompetence of himself, his sub-contractor or his employees.' He was also to 'make good any injury to the property of the neighboring proprietors which may be caused by the construction of his work.' He was to carry 'public...