Thompson v. Goble

• Decision Date: 23 January 1888
• Citation: 15 Or. 631,16 P. 713
• Parties: THOMPSON et al. v. GOBLE et al.
• Court: Oregon Supreme Court

16 P. 713

15 Or. 631

THOMPSON et al. v. GOBLE et al.

Supreme Court of Oregon

January 23, 1888

Appeal from circuit court, Umatilla county.

Action by R.G. Thompson and J.W. Flack against D. Coffman, sued with J.J. Goble and Thomas Nye, on a contract made by Goble and signed with him by defendants. Judgment for plaintiffs, and defendants appeal.

Wagner & Skipworth and Tustin, Leasure & Israel, for appellants.

Cox &amp Minor, for respondents.

STRAHAN J.

This is an action to recover damages for a breach of a building contract, signed by J.J. Goble, as principal, and D. Coffman and Thomas Nye, as sureties. It appears from the complaint that on the fourteenth day of June, 1886, the plaintiffs entered into a contract with J.J. Goble, who agreed to furnish all of the materials, except brick, and perform all the work and labor, in the erection of a certain building in Pendleton, Oregon, for which the plaintiffs were to pay $6,460, to be paid in various amounts, as the work progressed. To secure the faithful performance of said contract on the part of said Goble, the agreement sued on was executed. Said agreement contains, among other provisions, the following: "Said party of the first part further agrees that he will promptly pay, or cause to be paid, for all materials used by him under this contract, and all labor and mechanical workmanship performed and executed in the construction and completion thereof, and that contemporaneously with the execution of this contract, he will enter into a bond in amount equal to entire cost of building, with sureties satisfactory to the parties of the second part, in which they shall bind themselves to pay all claims for labor and materials used upon said work, in such time as to prevent any liens accruing against said work or building, and to hold said parties of the second part harmless against any such claims or lien." The complaint assigns as breaches of this part of the contract that defendants did not pay all claims for labor or materials used upon said building; nor was any other bond executed to the plaintiffs to secure them against default on the part of the defendants in performing the covenant of said contract but that of claims justly incurred for labor and materials used upon said building the defendants utterly failed and neglected to pay divers thereof amounting to the sum of $1,473.71, which amounts these plaintiffs were compelled to pay, and did thereafter pay for items too numerous to be therein particularly set forth, on or before the fifteenth day of November, 1886. Judgment appears to have been taken against Nye for want of an answer. Goble and Coffman demurred to the complaint, but, their demurrers being overruled, they filed separate answers. Coffman's denial controverts the alleged breaches. Goble's goes further, and, in addition to controverting the breaches alleged in the complaint, it alleges the making of the agreement; that he kept and performed the same on his part, in every particular; and that the building was duly accepted by the plaintiffs. The answer contains the further allegation that plaintiffs have neglected and omitted to pay said defendants $2,088.23 of the contract price for erecting said building. The reply denied the new matter in the answer. A trial before a jury in the court below resulted in a verdict and judgment in favor of the plaintiffs, from which this appeal is taken.

Numerous errors are assigned in the notice of appeal but we are relieved of the necessity of noticing any of said alleged errors, other than those arising on the matters of evidence connected with the alleged breaches of said contract by the defendants. No part of the charge of the court to the jury appears in the bill of exceptions, and it must therefore be presumed upon this appeal that such charge was in every particular correct. The fact that it was lost, and for that reason does not appear, gives rise to no implication that it was erroneous.

1. The errors principally relied upon by the appellants is that no breach of the conditions or covenants by the defendants is shown; that to constitute such breach, for which Coffman, a surety, can be held liable, it must be made to appear that claims...