U.S. Gypsum Co. v. Gleason

• Decision Date: 08 May 1908
• Citation: 135 Wis. 539,116 N.W. 238
• Parties: UNITED STATES GYPSUM CO. ET AL. v. GLEASON ET AL.
• Court: Wisconsin Supreme Court

135 Wis. 539

116 N.W. 238

UNITED STATES GYPSUM CO. ET AL.

v.GLEASON ET AL.

Supreme Court of Wisconsin.

May 8, 1908.

Appeal from Waukesha County Court; M. S. Griswold, Judge.

Action by United States Gypsum Company and others against Michael Gleason and others. From a judgment dismissing the complaint, plaintiffs appeal. Reversed and remanded, with directions.

In 1902 and 1903, the county of Waukesha erected an asylum for the insane. The contract for the mason and brick work was awarded to the defendant Michael Gleason. The work was duly performed, and Gleason was fully paid by the county the amount of the contract and his bill for extras. The plaintiffs severally furnished and supplied Gleason with materials which were used in the erection of the asylum. It also appeared that each furnished Gleason with materials which were used by him on other work. By the findings the court separated the various items for materials furnished to Gleason and used by him elsewhere from those used in this work and the amounts due from Gleason for materials so furnished him and used in the erection of the asylum. The contract made by the building committee for the county with Gleason provided: “The said M. Gleason, party of the first part, further agrees to pay all claims for labor performed and materials furnished in the construction, erection and completion of the said works for said buildings. It is further agreed that this contract shall have no force or effect until the said M. Gleason shall give a good and sufficient bond to the said county of Waukesha, approved by the said building committee and conditioned for the completion of said works for said buildings and faithful performance of this contract and the payment of all claims for labor performed and for all materials furnished in the erection, construction and completion of the said works under this agreement.” In conformity with the foregoing provision of the contract, a bond was given by Gleason and the defendants in this action, containing the following: “The condition of this obligation is that if the said M. Gleason shall pay all legal claims for labor performed and material furnished in and about the erection, construction and completion of said works for said building and in and about the performance of his said contract, and shall faithfully perform the terms of said contract, on his part to be performed, then this obligation to be void, otherwise to remain in full force and effect.” Plaintiffs bring this action on the foregoing provisions of the contract and bond to enforce payment of the unpaid claims for the materials furnished by them and used in the construction of the building. The court admitted parol evidence of the fact that the defendants did not intend to incur any liability by the bond other than to the county and made a finding to that effect. The court also received parol evidence tending to show that, when plaintiffs furnished the materials, they did not rely on the bond, but that they furnished them relying on Gleason's personal good credit. This is an appeal from the judgment dismissing the complaint with costs against the plaintiffs.Glicksman & Gold (C. L. Aarons, of counsel), for appellants.

Ryan, Merton & Newbury and D. J. Hemlock, for respondents.

SIEBECKER, J. (after stating the facts as above).

The dominant question arising upon the issues and the facts found by the court is: Do the contract and bond, taken together, constitute an obligation whereby the plaintiffs secured the right to demand payment of the sureties for unpaid material furnished by them and used in the buildings constructed by the county? By the contract the principal contractor bound himself to pay “all claims for labor performed and materials furnished” for the portions of the buildings to be constructed by him. It was also agreed that his contract should not be effective and binding on the parties until the contractor had given a bond to the county, to be approved by the building committee, conditioned for the faithful performance of the contract and the “payment of all claims for labor performed and for all materials furnished in the erection, construction and completion of the said works under this agreement.” The contractor, Gleason, and the other defendants, as sureties, gave a bond to the county, pursuant to this agreement, which was approved by the building committee, and which was conditioned in terms that if the contractor “shall pay all legal claims for labor performed and material furnished in and about the erection, construction and completion of said works, * * * and shall faithfully perform the terms of said contract, on his part to be performed, then this obligation to be void, otherwise to remain in full force and effect.” These stipulations plainly show that the contractor was to pay for the labor and material furnished by him under his agreement to construct a portion of these buildings, and they expressly specify that the bond was to be given to secure faithful performance of the contract and the payment of all claims for material furnished and used in the building. The phraseology of these agreements is clear and unambiguous and free from any uncertainty as to its significance. It must be held to express an intention of the parties to the effect that the bond was given to secure payment for any materials furnished and used in the construction of the buildings by Gleason in case of his default in this respect. This conclusion is in harmony with all the provisions in the contract and bond. We find no uncertainty or ambiguity in any of their provisions and no conflict between the agreements, when taken together. Since there are no ambiguities in the agreements, they can in no way be explained, modified, or contradictedby parol evidence in order to ascertain what obligation the sureties intended to assume. They must be held to have undertaken the obligations embraced in and expressed by the terms of the instruments. It is obvious and clear that they express an intent of the parties to the effect that, upon default by Gleason to pay for any of the materials furnished and used in the buildings, then the bondsmen secured payment therefor. Connor Co. v. Olson (Wis.) 115 N. W. 811;Wussow v. Hase, 108 Wis. 382, 84 N. W. 433;Loper v. Estate of Sheldon, 120 Wis. 26, 97 N. W. 524.

Under these circumstances, no occasion is presented for the reception of parol evidence to ascertain what obligation the sureties in the bond intended to assume under these written contracts. They must be held to be bound by their terms as expressed in the writing. Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641;Newell v. New Holstein Canning Co., 119 Wis. 635, 97 N. W. 487. Nor does the fact that the agreement operated to the benefit of a third party, who did not personally assent to its terms at the time of its inception or before the materials were furnished, alter the rule as to the right to modify written agreements by parol evidence. Johnston v. Charles Abresch Co., 123 Wis. 130, 101 N. W. 395, 68 L. R. A. 934, 107 Am. St....