Picot v. Signiago

• Decision Date: 31 March 1856
• Citation: Picot v. Signiago, 22 Mo. 587 (Mo. 1856)
• Parties: PICOT, Appellant, v. SIGNIAGO, Respondent.
• Court: Missouri Supreme Court

22 Mo. 587

PICOT, Appellant,

v.SIGNIAGO, Respondent.

Supreme Court of Missouri.

March Term, 1856.

1.A surety may contract as a “principal,” and by so doing will renounce the right of setting up a defence arising out of the relation of principal and surety.

2.A. and B. executed a bond whereby they obligated themselves “as principals” to build a house for C., the house to be built by A.; payments to be made as the work should progress, retaining twenty-five per cent. on the amount of work done, and the balance after the entire completion of the work, &c., to the satisfaction of the said C., and after the settlement of “all lawful claims, liens or demands against said work, on account of materials furnished or work done;” and C. to be secured “from all claims and losses.”Liens were filed by material men against the building, which were paid by C.Held, in a suit by C. against B., that B. could not set up as a defence that C. had paid to A. the whole value of the work done, not reserving the 25 per cent.; he(C.) not knowing at the time that there were liens upon said building.

3.In order to entitle C. to recover compensation in such a case, it is not necessary that payment of the sums for which the liens were held should be first enforced by suit and execution.All that is necessary is that they should be valid liens and enforceable.

Error to St. Louis Court of Common Pleas.

This was a suit brought by Louis G. Picot against James Signiago, to recover damages for the breach of a contract.Picot entered into a contract with one Porter Bush, to do all the necessary brick work, according to certain specifications, of a market-house, then about to be erected by said Picot.The contract among other stipulations contained the following: “And the said Louis G. Picot, on the second part, does hereby covenant and agree with the said Bush, that he shall and will pay to the said Bush, his heirs or assigns, for the entire completion of the work mentioned, to the satisfaction of the said superintendent, at the rate of $3 50 per thousand of bricks, measured when in the walls, without any extra allowance; payments to be made as the work progresses, retaining twenty-five (25) per cent. on the amount of work done, and the balance after the entire completion of the work to the satisfaction of the said Louis G. Picot or superintendent, and after the settlement of all lawful claims, liens or demands against said work on account of materials furnished or work done.”There was also this further clause: “And for the faithful performance of all and singular the terms of this contract, and for the securing the said Picot from all liens, claims and losses, the said Bush, and James Signiago, and ________, all as principals, do hereby bind themselves, their executors, administrators and assigns, unto the said Picot, in the penal sum of one thousand dollars, firmly by these presents.Witness our hands and seals this 16th of September, 1850.[Signed]Porter Bush, (seal).James Signiago, (seal).

Plaintiff assigned as a breach of said contract that the said Bush and Signiago had not secured plaintiff from all liens, claims and losses, but that a large number of liens upon said building had been filed in the office of the clerk of the Circuit Court by mechanics and laborers employed upon said building by said Bush, which liens were claims and charges upon said building valid in law.Plaintiff alleged that he had paid $104 38 of said liens; that the remaining valid liens against said building amounted to $277 55; that plaintiff, at the urgent solicitation and request of the said Bush, paid to him all the money due to him on account of said contract, with the exception of about $46, and that such payments were made without any knowledge that any liens had been filed.

The defendant, in his answer, admitting the execution of the contract, says: “That, according to said agreement, the said plaintiff had in his possession moneys belonging to said Porter Bush, and retained from said Bush more than sufficient to pay every liability, lien, claim and demand against said market-house mentioned in plaintiff's petition, due or to prove due, or arising from the work done by said Bush;” and more than sufficient to pay all debts, dues and demands against said market-house by reason of any failure on the part of the said Bush to faithfully perform all and singular the terms, conditions and stipulations in said agreement, &c.

On the trial, plaintiff gave testimony tending to prove the value of the work done by Bush under the above contract; also the amount paid by plaintiff to Bush on account of said work; that a number of liens and claims on the building were filed in the clerk's office of the Circuit Court; that judgments were obtained on said liens in the Circuit Court, and that plaintiff paid those judgments.

Plaintiff then offered to prove that a number of liens and claims on said building were filed by different persons; that they were prosecuted to judgment against Bush before a justice of the peace for St. Louis county, and that plaintiff paid these judgments without the filing of any transcripts in the clerk's office of the Circuit Court, and without the issue of any executions thereon, and offered, in this connection, to prove that the payments were made by plaintiff upon representation made to him by the respective claimants that they would file a transcript and take out execution on their respective claims unless they were paid; that such payments were made by plaintiff to save the accumulation of costs.This testimony was ruled out by the court.To this exclusion plaintiff excepted.

Plaintiff further showed that Bush left the country about or just before the time of the completion of the building, and that plaintiff, a few evenings prior thereto, paid Bush almost the whole of the 25 per cent. then in his (plaintiff's) hands at the request of Bush, and without the knowledge or consent of defendant(Signiago).

The following instruction, asked by plaintiff, was refused by the court: “1.If the jury believe from the evidence in this case that the plaintiff paid the judgments obtained in the Circuit Court upon the liens filed against the Harney market, they will find for the plaintiff the amount so paid, (deducting therefrom the amount, if any still due from plaintiff to Bush,) with interest from the time when said amounts were paid.”Plaintiff excepted to the refusal of this instruction.

The court then gave the following instruction: “2.If the jury believe from the evidence that the plaintiff paid on the judgments in the Circuit Court, read in evidence, any sums of money, they will find for the plaintiff, unless they further find that 25 per cent. of the contract price of the work done by Bush, under the contract sued upon, together with the amount due Bush, still in the hands of plaintiff, equals or exceeds the amount so paid by plaintiff.By the terms of the contract sued upon, the plaintiff was to retain 25 per cent. of the contract price of the work and materials furnished by Bush on the building in question, until the work was completed, and until all lawful claims, liens and demands against said work, on account of materials furnished or work done, were settled; and if plaintiff, before the completion of said work and settlement aforesaid, paid over to said Bush any portion of said 25 per cent., then the defendant is entitled to have the portion of said 25 per cent. so paid over, and also whatever is still due to said Bush, deducted from the amount of payment made by the plaintiff on the liens offered in evidence.If after making such deductions the balance is in favor of the plaintiff, they will find for the plaintiff and assess his damages at the amount of said balance.If there is no such balance in favor of the plaintiff, they will find for the defendant.”Plaintiff excepted to the giving of this instruction.

Plaintiff submitted to a nonsuit, with leave to move to set the same aside, and a motion to that effect having been made and overruled, the case is brought here by writ of error.

C. B. Lord, for appellant.

1.Signiago was a principal in the contract.2.Appellant was not bound to retain 25 per cent. of the contract price of said work.3.Appellant was entitled to recover the amount paid by him on all the...