Parker Land & Improvement Co. v. Ayers

• Decision Date: 09 April 1909
• Docket Number: No. 6,820.,6,820.
• Citation: 43 Ind.App. 513,87 N.E. 1062
• Parties: PARKER LAND & IMPROVEMENT CO. v. AYERS et al.
• Court: Indiana Appellate Court

43 Ind.App. 513

87 N.E. 1062

PARKER LAND & IMPROVEMENT CO.

v.AYERS et al.

No. 6,820.

Appellate Court of Indiana, Division No. 1.

April 9, 1909.

Appeal from Circuit Court, Delaware County; J. G. Leffler, Judge.

Action by the Parker Land & Improvement Company against Carey C. Ayers and others. From a judgment for defendants, plaintiff appeals. Affirmed.

John W. Newton and Thompson & Thompson, for appellant. S. W. Haynes, D. T. Taylor, Gregory & Lotz, and Louis B. Ewbank, for appellees.

WATSON, C. J.

The Parker Land & Improvement Company, appellant, brought this action against Carey C. Ayers, Oscar J. Current, Daniel W. McLeod, and Edward J. Shoobridge, appellees, upon a bond executed by said Ayers and Current to appellant to secure the performance of a contract by McLeod and Shoobridge to erect and construct, for appellant, a certain building upon its real estate. Judgment below for defendants.

This case, originally filed in the Supreme Court and subsequently transferred to this court, presents three questions for our consideration, viz.: (1) Overruling appellees' demurrer to the complaint; (2) overruling appellant's demurrer to paragraphs 8 and 9 of the answer; (3) overruling appellant's motion for new trial.

1. The amended complaint sets out the building contract executed by appellees McLeod and Shoobridge, and the bond executed by all the appellees to secure its performance. By the contract, plaintiff agreed to pay $4,860 for the erection of the building, as follows: Eighty per cent. to be paid each two weeks for work and materials used; sufficient money for all hired labor each week until the building was completed, the same to go to make up the 80 per cent.; and the 20 per cent. remaining to be paid when the building was completed to the entire satisfaction of the party of the first part, free from all liens, judgments, or claims either for material used or labor performed. The building was to be built and constructed in every particular and minute detail in accordance with the plans and specifications of the architects. The complaint then alleges that said defendants McLeod and Shoobridge, under and pursuant to said contract, entered upon the work of constructing the building, but that long before the same was completed they wholly abandoned said contract, leaving the building partially constructed and in an unfinished condition. It alleges that, before McLeod and Shoobridge abandoned said contract and the construction of said building, defendant Ayers, a surety, notified plaintiff in writing not to pay any more money to said contractors on said contract, but to pay the same upon bills for materials and work that went into and was done and performed upon the building; but that before receiving such notice, plaintiff had paid $2,553, to the contractors under and pursuant to said contract, and that after receiving the notice paid an unstated amount for labor and materials. Plaintiff avers that “it has been at all times since the making of said contract *** ready, willing, and anxious to have defendants McLeod and Shoobridge complete said building according to said contract, and has at all times during said time been ready and willing to pay the balance of the said contract price when the said building was or should be completed according to said contract, *** and its failure and refusal to pay the balance of said contract price is only because said building has not been completed according to the contract.” It is then alleged that defendants Ayers and Current, for the purpose of saving themselves harmless as sureties on said bond, undertook and agreed that they would finish the construction of said building under and pursuant to the conditions of said contract, and thereupon entered upon the work; and that plaintiff did pay at their request $1,600 for labor and materials used by them. A number of alleged breaches of the bond are then charged, to wit, defective and unfinished construction of the building, inferior quality of the materials used, failure to complete building within the time agreed upon, and failure to pay for labor and materials so as to keep the property free from mechanics' liens. The foreclosure of a number of such liens is then averred, resulting in judgments against the plaintiff, which, to prevent the sale of its property, plaintiff paid in the sum of $1,930, together with attorney's fees of $500. The building as completed by said Ayers and Current is alleged to be worth not more than $2,000, and $700 is asked for as a reasonable attorney's fee for suing upon the bond. Loss to plaintiff is alleged to be $3,000; wherefore judgment is demanded for $4,000.

Appellees insist that nowhere in the complaint does appellant allege performance upon its part of all the conditions of the contract to be performed by it. And the rule undoubtedly is that a pleading, either as a cause of action or as a matter of defense, based upon a contract, must aver performance of the stipulations to be performed by the party relying upon the contract, or a sufficient excuse for nonperformance. Armstrong v. Rockwood, 53 Ind. 506;Melton v. Coffelt, 59 Ind. 310;Floyd v. Maddux, 68 Ind. 124-126. Appellant answers this by referring to the rule in Riley v. Walker, 6 Ind. App. 622, 629, 34 N. E. 100, 102, that “it is unnecessary to allege performance, or readiness to perform, on the part of the plaintiff, where it is shown that the defendant has repudiated the contract, or affirmatively refused to perform, or denies liability under it.”

The complaint alleges that defendants McLeod and Shoobridge abandoned the contract, and this is equivalent to a positive allegation that...