School Dist. of Village of Barfield v. Green

• Decision Date: 15 December 1908
• Citation: 114 S.W. 578,134 Mo. App. 421
• Parties: SCHOOL DIST. OF VILLAGE OF BARFIELD v. GREEN et al.
• Court: Missouri Court of Appeals

114 S.W. 578

134 Mo. App. 421

SCHOOL DIST. OF VILLAGE OF BARFIELD v. GREEN et al.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

Rehearing Denied December 29, 1908.

1. PRINCIPAL AND SURETY (§ 100) — BUILDING CONTRACTS — SURETY DISCHARGED — DEPARTURE FROM PLANS AND SPECIFICATIONS.

A building contractor's sureties, under a bond not providing for alterations without discharging them, were discharged by deviations from the plans and specifications made without their assent and with the owner's.

2. PRINCIPAL AND SURETY (§ 83) — BUILDING CONTRACTS — ESTOPPEL.

Sureties on a building contractor's bond are not estopped to deny liability on the contractor abandoning the work because they appropriated material he left, selling it and appropriating the proceeds; nor because they requested the owner not to sue on the bond until they could see "what could be done about getting things in shape to go on with the building;" nor because they acquired property of the contractor's wife, under an agreement to apply it to the completion of the work, though the sureties' acts may have been tortious toward the contractor.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

Action by the School District of Village of Barfield against George S. Green and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Jno. M. Atkinson and Alf. Perkins, for appellant. Thos. T. Lane and C. F. Butler, for respondents.

GOODE, J.

On August 31, 1905, the appellant school district entered into a contract with J. W. Boyle for the erection of a schoolhouse, or attempted to make such a contract; the effectiveness of the attempt being disputed on the contention that the full contract and its consideration were not in writing as required by the statutes. 3 Ann. St. 1906, § 6759. We will not decide this question, because we think the appeal must fail on another ground. Conceding there was a lawful contract, it provided Boyle should complete the schoolhouse by January 1, 1906; that it should be built in accordance with plans and specifications which had been submitted to the school board by J. G. Vincent, an architect, and approved by the board, and that said plans and specifications should constitute a part of the contract; that Boyle should be paid $4,100, and a warrant for said sum should be drawn as soon as he had given bond in the sum of $4,300 for the performance of the work. Boyle subsequently executed a bond for $4,100, instead of $4,300, with these respondents and one other person as his sureties. He also executed a contract. Both instruments bear the date of August 31, 1905, and were approved by the board of school directors on September 3d of said year. He began work on the house, but failed to complete it in the time stipulated, and in truth the work was in progress in March, 1906, when Boyle abandoned his contract and left the state. Thereupon the sureties on his bond, or some of them, took charge of such building material as was still on the lot, and had not been used, and sold it, after posting notices that the material had been purchased by the bondsmen. According to the estimates of the witnesses, the material thus appropriated was of the value of $1,200. In May, 1906, while Boyle was absent from the state, his wife turned over to respondents Green and Armstrong a house and lot, and personal property of the total value of $900. This property, or most of it, belonged to Mrs. Boyle. She swore it was all hers practically, and that she delivered it to those men to indemnify them against loss on the bond, and on the understanding they would complete the schoolhouse. She was given a receipt, signed by the two men named, which described the property and estimated its value, and then said: "All the above property and cash and note received from Mollie Boyle to apply on payment of the finishing of schoolhouse which J. W. Boyle failed to finish, and the above being all received of her except such book accounts and papers now held in Bank of Naylor, and we, the undersigned, agree to give the said Mollie Boyle and J. W. Boyle no further trouble from the time said papers and property shall have been fully turned over to us, leaving to their honor any further payments which they may see fit to make at any future time; we holding only such property and papers now in our hands and to be delivered, thus releasing all claim to the property which Mollie Boyle now lives in from any claim to us. Signed and delivered the day first above written. C. B. Armstrong, Geo. S. Green." During the course of the work the plans and specifications were deviated from in several particulars. The specifications called for full-length joists overhead in the second floor, and instead of using such joists, columns were put in the building, running to the roof, and short joists were extended from either side to the center, where they were supported by these columns. Cement window sills were made instead of oak sills which the specifications called for. The evidence tends to show the windows and doors were placed differently from where the plans indicated they should be. The specifications said trenches for the foundation should be excavated 24 inches in depth and 30 inches in width, and be filled to the height of one foot above the ground with solid concrete well tamped; said concrete to be made of good Portland cement and gravel, or crushed stone and sand properly mixed, and applied to assure first-class work. Instead of this being done, Portland cement was not used in the foundation. The contract called for good...