Appeal from St. Louis Circuit Court; P. R. Flitcraft, Judge.
Action by Christian E. Ramlose against Charles Dollman and the National Surety Company for breach of contract. Judgment for plaintiff, and defendants appeal. Affirmed.
The suit is on the following bond:
"Contractor's Bond.
"Know all men by these presents: That Charles Dollman as principal and National
Surety Company, a Missouri corporation, as security, are jointly and severally held and firmly bound unto Thomas Warren, obligee, in the sum of nine thousand ($9,000) dollars lawful money of the United States of America, well and truly to be paid to the said Thomas Warren, for which payment well and truly to be made, we bind ourselves, and each of us by himself, our and each of our heirs, executors, administrators, and successors or assigns, firmly by these presents. Sealed with our seals and signed with our hands, this first day of May, in the year of our Lord eighteen hundred and ninety-five.
"The condition of the above obligation is such, that whereas the said Charles Dollman has on the day of the date of these presents, executed and entered into a certain contract for the erection of certain buildings in said contract described, which contract is hereto annexed: Now if the above-named obligee and the said Charles Dollman shall respectively well and truly perform and fulfill all and every the covenants, conditions, stipulations and agreements in said contract mentioned to be performed and fulfilled, and the said Charles Dollman shall keep the said obligee, Thomas Warren, harmless and indemnified from and against all and every claim, demand, judgments, liens and mechanics' liens, costs and fees of every description incurred in suits or otherwise, that may be had against him or against the buildings to be erected under said contract, and shall repay the said Thomas Warren all sums of money which he may pay to other persons on account of work and labor done or materials furnished on or for said buildings, and if the said Charles Dollman shall pay to the said Thomas Warren all damages he may sustain, and all forfeitures to which he may be entitled by reason of the nonperformance or malperformance on the part of said Charles Dollman of any of the covenants, conditions, stipulations and agreements of said contract, then this obligation shall be void, otherwise the same shall remain in full force and virtue.
"Witness our hands and seals
"Charles Dollman
"[Seal.] National Surety Company
"By A. E. Stilwell, President
"Attest: W. S. Rugh, Secretary."
The petition alleged an assignment in writing of the bond by Warren to plaintiff on July 25, 1899, without alleging that Warren had performed or kept all the conditions of the building contract referred to in the bond on his part, and alleged the following breaches of the bond by Dollman: "For specific breaches of the condition of said bond plaintiff assigns the following: That the said Charles Dollman did not well and truly perform and fulfill all and every the covenants, conditions, stipulations, and agreements in said contract mentioned to be performed and fulfilled; that under the terms of the said contract the said Charles Dollman agreed and undertook that the said buildings in said contract mentioned should be completed ready for use and occupancy on or before September 1, 1895; that said Dollman should pay to said Warren the sum of ten dollars ($10) as liquidated damages for each and every day after said date until said building should be completed and ready for use and occupancy. Plaintiff further states that said building was not completed and ready for use and occupancy until the 1st day of November, 1895, and that thereby there was due and owing to the said Thomas Warren the sum of $610 on account of the same, all of which said sum is still due and unpaid. For another and further breach of said bond plaintiff states that the said Charles Dollman did not keep the said Thomas Warren harmless and indemnified against all and every claim, demand, judgment, liens, and mechanics' liens, costs, and fees of every description, incurred in suits or otherwise, that might be had against said Warren or against said buildings erected under said contract; that on or about the 12th day of April, 1899, in an action in which the said Dollman was defendant, Hazelhurst Lumber Company recovered a judgment against Henry D. Viser and L. T. Sanders, subcontractors under said Dollman, and others, in the St. Louis circuit court on a demand for material furnished for said buildings, and said demand was adjudged by said court to be a lien on the buildings aforesaid, and the land on which the same was situated; that said Thomas Warren was compelled to pay, and did pay, on or about June 27, 1899, the sum of ten hundred and ninety-four dollars and one cent in settlement of said judgment and costs; that said Dollman has never repaid to said Warren any part of said sum; that by reason thereof said Thomas Warren has been damaged in the sum of $1,094.01. Plaintiff further states that by reason of the failure of defendants to keep the condition of said bond the said Warren has been damaged in a total sum of $1,704.01."
Defendants Dollman and the National Surety Company filed separate answers. They are, however, identical in respect to the defenses relied on at the trial. These defenses are as follows: "This defendant, further answering said petition, says that article 9 of the contract between said Charles Dollman and said Thomas Warren, referred to in the petition herein, was and is as follows: `It is hereby mutually agreed between the parties hereto that the sum to be paid by the said owner to the contractor for said work and materials shall be $9,000, subject to conditions and deductions as hereinbefore provided, and that such sum shall be paid in current funds by the owner to the contractor in installments, as follows: When first floor timbers are laid, seven hundred dollars ($700); when second floor timbers are laid, eight hundred dollars ($800); when roof is
on, four thousand five hundred dollars ($4,500); when top floors are laid, fifteen hundred dollars ($1,500); when finished, fifteen hundred dollars ($1,500). All payments to be made by the party of the second part under this contract shall be made to the National Surety Company in trust for the use and benefit of the party of the first part, for the purpose of performing the covenants and agreements of the party of the first part as herein provided. The final payment shall be made within ____ days after this contract is fulfilled. All payments shall be made upon written certificates of the architects to the effect that such payments have become due. If at any time there shall be evidence of any lien or claim for which, if established, the owner of the said premises might become liable, and which is chargeable to the contractor, the owner shall have the right to retain out of any payment then due, or thereafter to become due, an amount sufficient to completely indemnify him against such lien or claim. Should there prove to be any such claim after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor's default.' Said defendant avers that said Thomas Warren did not perform his part of the said article 9 with respect to the time of payments of the various amounts set forth therein; on the contrary, he delayed making payment of each and every of said installments set forth in said article 9 long...
