Union Indemnity Co. v. Vetter, 5685.
| Decision Date | 06 May 1930 |
| Docket Number | No. 5685.,5685. |
| Parties | UNION INDEMNITY CO. v. VETTER. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Manning W. Heard and J. C. Henriques, both of New Orleans, La., Francis M. Miller, John G. McKay, and James A. Dixon, all of Miami, Fla., for appellant.
Robert J. Boone, of Miami, Fla. (Jack R. Kirchik, of Miami, Fla., on the brief), for appellee.
Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.
This is an appeal from a judgment of the District Court of the United States for the Southern District of Florida in favor of plaintiff (appellee) against the Miami Real Estate & Building Company and the appellee (defendants) upon a verdict of a jury in the sum of $10,990. The action was brought on a bond executed by the defendants to secure the performance of a contract between the appellee and the Miami Real Estate & Building Company to construct an apartment in Coral Gables. The contract price was $35,000, of which $10,000 was paid upon the execution of the contract and bond. The contract provided for the payment of the total cost of labor done and 90 per cent. of the material furnished upon certificate of the superintendent each week during the progress of the work. Work was begun upon the building, and only one other payment was made the contractor. It was paid $15,000 January 2, 1926. The contractor continued the work until about March 6, 1926, and then abandoned it while incomplete. The appellee finished the building at his expense. The Miami Real Estate & Building Company never appeared, and was adjudicated a bankrupt.
There is a motion to dismiss the appeal, based on the absence of the Miami Real Estate & Building Company as a party to the appeal; there having been no summons and severance as to it. The Miami Real Estate & Building Company has entered its appearance in this court and has submitted itself to the jurisdiction of this court. In this state of the record the motion to dismiss the appeal is denied.
There is also a motion to strike the bill of exceptions from the record because it was presented and signed by the District Judge and filed with the clerk after the appeal had been sued out. The motion to strike is denied upon the authority of Lyons v. U. S. Shipping Board (C. C. A.) 278 F. 144-146 (Fifth Circuit).
On the Merits.
The appellant contends that the amended declaration was bad, and it was entitled to judgment because it showed a deviation of payments actually made by appellee to the contractor from those prescribed to be made by the contract. The contract prescribed weekly payments of the total cost of labor done and 90 per cent. of the material furnished on certificate of the superintendent. Two payments in all were made; one of $10,000, when the contract was signed; one of $15,000 on January 2, 1926, thereafter. The ninth section of the contract provided that appellee was to advance the contractor $10,000 immediately, and did, in fact, do so. The appellant is charged with knowledge of the terms of the contract, the performance of which the bond was given to secure. It is evident that the provision for weekly payments as stated in the third section of the contract is inconsistent with the payment of $10,000 provided for by the ninth section. The ninth section, being subsequent in order and having been actually performed, should be held to be a waiver on the part of appellant of the prior provision for weekly payments, and the appellant cannot rely upon the failure to make weekly payment as such a deviation of the terms of the contract as would avail to release it, as surety.
2. Appellant asked leave to file a number of additional pleas, which the court denied, stating that it would permit the appellant to prove the subject-matter set out in the additional pleas under the pleas already filed by appellant. The appellant suffered no injury from the denial of leave, in view of the offer of the court to admit the proof.
3. The appellee introduced in evidence certain notices of liens, over the objection and exception of appellant, claiming them as part of his damages. The condition of the bond is: "If the said Principal shall well and truly indemnify and save harmless the said Obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of the said contract on the part of the said Principal to be...
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