Stillman v. Wickham

• Decision Date: 26 October 1898
• Citation: 106 Iowa 597,76 N.W. 1008
• Parties: STILLMAN v. WICKHAM ET AL.
• Court: Iowa Supreme Court

106 Iowa 597

76 N.W. 1008

STILLMAN

v.WICKHAM ET AL.

Supreme Court of Iowa.

Oct. 26, 1898.

Appeal from district court, Pottawattamie county; Walter I. Smith, Judge.

By the terms of a written contract, G. S. Monroe agreed to construct a tenement house for the plaintiff according to specifications, and save her harmless of all liens and incumbrances. Mechanics' liens were established, however, amounting to $3,761.14, which the plaintiff was compelled to pay. With sums already paid, this was $1,992.33 more than the contract price. And this amount, with interest, the plaintiff seeks to recover from the sureties on Monroe's bond, conditioned for the performance of his contract. The defense interposed was that defendants were relieved from liability by alteration of the contract. Trial to court, judgment for defendants, and plaintiff appeals. Affirmed.Stone & Tinley and Stillman & Stillman, for appellant.

Harl & McCabe, for appellees.

LADD, J.

The liability of the defendants, as sureties on the contractor's bond, for the amount paid to satisfy the mechanics' liens in excess of the contract price, is conceded, unless avoided by some change in the contract. Owing to the situation of the surety, he must be treated with the utmost good faith, and may insist on the strict terms of his obligation. School Dist. v. Reichard, 50 Iowa, 98;Starr v. Blatner, 76 Iowa, 358, 41 N. W. 41;Brigham v. Wentworth, 11 Cush. 123;Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232;Erickson v. Brandt (Minn.) 55 N. W. 62;St. Mary's College v. Meagher (Ky.) 11 S. W. 608;Bragg v. Shain, 49 Cal. 131;Mayhew v. Boyd, 5 Md. 102;Miller v. Stewart, 9 Wheat. 680. If a material alteration is made in the contract without the surety's consent, he is discharged, even though the alteration may be for his benefit. Brandt, Sur. § 338. We inquire, then, whether the contract between plaintiff and Monroe was altered or any of its conditions waived by the parties. In establishing the mechanic's lien the court, found that the contractor had done extra work, valued at $574. This was without special bargain evidenced in writing, as required by the contract, a portion of which we set out: “Extra work: In case it is deemed necessary during the construction of the building to have more or extra work done than is specified or shown in the plans, such work is to be done by the contractor, but he is required not to proceed to make such work without a special bargain or contract for the same, and minuted on the back of the original contract; otherwise it is not binding upon either of the parties.” The evident object of this clause was to prevent changes or alterations on mere suggestion, without fixing their extent, and to avoid controversy and litigation as to what were extras and their value. But the extra work was done at the request of the plaintiff, and upon her oral promise to pay, without special bargain or agreement minuted on the original contract, as therein required. To our inquiry it is quite immaterial whether the parties might waive this condition, and substitute the method pursued. But see Smith v. Gugerty, 4 Barb. 614;Bartlett v. Stanchfield (Mass.) 19 N. E. 549;Osborne & Co. v. Backer, 81 Iowa, 379, 47 N. W. 70; Viele v. Insurance Co., 26 Iowa, 53; King v. Insurance Co., 72 Iowa, 315, 33 N. W. 690.

By the terms of the original contract, each party was relieved from liability unless the extra work was done in pursuance of a special bargain in writing. It was not on the original contract that plaintiff was held for the extra work in the action referred to, but because of the separate oral agreement made with Monroe, substituted therefor. The obligations of the sureties was that the contractor “comply with all the conditions of said contract, and faithfully perform all the undertakings therein stipulated by him to be performed.” Monroe was not bound to do the extra work save on the conditions stipulated, and, if plaintiff suffered loss by reason of the adoption of another method, the sureties are under no obligation to recoup it. Nor does this change affect other portions of the contract, as it expressly provides for such a contingency. This alteration was such as the parties were permitted to make, on the condition that liability should not attach.

2. The contract provided that Monroe “furnish all materials such as are called for in the plans, detail drawings, and specifications,” and that he use “such materials as...