Taylor v. Jeter

• Decision Date: 31 March 1856
• Citation: 23 Mo. 244
• Parties: TAYLOR et al., Plaintiffs in Error, v. JETER & ROBINSON, Defendants in Error.
• Court: Missouri Supreme Court

23 Mo. 244

TAYLOR et al., Plaintiffs in Error,

v.JETER & ROBINSON, Defendants in Error.

Supreme Court of Missouri.

March Term, 1856.

1. A. agrees to erect a building for B., A. furnishing the materials; B. engaged to pay A. various specified sums at particular stages in the progress of the work, the remainder to be paid sixty days after the completion of the building, and its acceptance by B.; C. became the security of A. for the timely execution on his part of this contract. The building was completed by A. and accepted by B., and although B. received notice before the completion of the building of the filing of various mechanics' liens for materials furnished by sub-contractors under A., he yet paid to A. the contract price before the completion of the building, and before he was bound by the contract to pay the same. Held, that B. having been compelled to pay the liens thus established against the building in breach of the contract of A., and having failed to protect himself by retaining the sums falling due after the date of the notice of the liens, could not resort to C. as the security of A. for indemnity.

Error to St. Louis Court of Common Pleas.

On the 1st November, 1851, an agreement in writing was made between defendant, Jeter, and the trustees of the postoffice building. Jeter, on his part, contracted to furnish all the materials and do all the work with diligence and dispatch necessary to the erection and entire completion of said building in accordance with certain plans and specifications (except certain portions of the work particularly named). He also agreed to make deductions from the contract price provided certain changes were made, and it was mutually agreed that the contract should not be impaired by reason of any alteration that might be directed by the trustees, and in the event any addition or omission in the plan of the building should be directed by the trustees, the cost thereof should be agreed upon in writing, and signed by the parties before the change should be made or any allowance therefor should be claimed. The trustees, on their part, agreed, in consideration that Jeter would faithfully perform his undertaking, to pay him $6625, as follows: when the first floor of joist was laid, $500; when the second was laid, $700; when the third was laid, $700; when the building was roofed, $1600; when the building throughout was ready for plastering, $500; when the building was finished, $1000; and the residue sixty days after they should receive the building. The agreement was signed by Taylor for the trustees, and by Jeter. On the day the agreement was made, the defendant, Robinson, as the surety for Jeter, executed a writing obligatory, wherein he bound himself to the trustees in double the amount of the sum for which Jeter had contracted to erect the building, conditioned for the timely execution and fulfillment of the entire undertaking on the part of Jeter as set forth in the said agreement. On these instruments the plaintiffs instituted this suit.

The petition states that Jeter proceeded to construct the building in pursuance of his agreement; that including $694.90 allowed him for extra work, the whole amount due him was $6619.90; that they paid him, from time to time, various sums, amounting in all to $6544.89, leaving unpaid, of the amount due him, $75.01; that Jeter did not fulfill his agreement, in that he did not furnish all the materials and do all the work necessary to the completion of the building for $5925, but, on the contrary, they paid him that sum and the further sum of $619.89 for extra work; that Jeter, having employed sundry persons to furnish materials for and to do work upon the building, of the descriptions which, by his agreement, he was required to furnish and do, failed to pay said persons for such materials and work, and thereupon said persons filed liens on the building, and prosecuted the same to judgment, which plaintiffs were legally compelled to pay and did pay; that they paid the following judgment lien creditors, to-wit, Isaac Fisher, $32.47; Jacob Vogdes et al., $653.47; Kingsland & Lightner, $326.47; A. M. Bacon, $182.68, and William Patrick, $264.98, amounting in all, including interest and costs, to $1460.07; which sum, less $75, the amount unpaid to Jeter, they claimed to be due them, and for which they asked judgment against Robinson & Jeter.

The answer of Robinson put in issue the material allegations in the petition, and averred that the plaintiffs gave him no notice, during the time Jeter was doing the work, that he was failing in any manner to comply with his agreement, or that he was failing to furnish any materials he had agreed to furnish, or that he had failed to pay the persons to whom he was indebted for work or materials, or that liens were filed against the building, or that Jeter was doing extra work. Jeter made default, and final judgment was rendered against him.

The case was tried by the court and the finding is as follows: “The court finds the facts to be as follows: The plaintiffs are and were, as averred in the petition, trustees of the post-office building company. The defendant did execute the writing obligatory set out in the petition as in the petition alleged, and the said Jeter did execute the contract in the petition alleged to have been executed by him. [The contract and writing obligatory made part of the finding.] The said Jeter furnished all the materials and performed all the work and labor required of him by said contract, but failed to pay therefor in the several matters charged in the petition In consequence of said failure on the part of said Jeter to pay therefor, the plaintiffs paid the said lien creditors after they had obtained judgments on their respective lien claims, at the times set out in the petition, the sum of $1385.06, including interest thereon; and of said sum, $210.78 were paid by the plaintiffs for liens growing out of the extra work and materials. The said building was completed and accepted by the plaintiffs on the first day of June, 1852. The following payments were made by the plaintiffs to said Jeter, under said contract:

1851.

Nov. 15

$500 00

Nov. 15

21 00

Nov. 29

700 00

Dec. 24

700 00

1852.

Feb. 7

1,600 00

Feb. 28

500 00

Mar. 27

85 87

April 3

78 50

April 5

463 00

1852.

April 10

$294 00

April 10

114 50

April 17

66 00

Mar. 20

42 00

May 12

32 40

May 14

60 25

May 14

300 00

May 14

537 37

May 14

450 00

The amount of work and materials furnished by said Jeter under the terms of the contract, paid and unpaid for, was $5925; extra work amounted, according to agreement of parties, to $694.90. The defendant did not pay nor did said Jeter pay any of said lien claims. The defendant received no notice from any of the plaintiffs, during the time said Jeter was at work under said contract, that said Jeter was not complying or that he was in any manner failing to comply with said contract, or that he had failed to pay for materials, work or labor on said building, or that he was doing extra work on said...