United States Fidelity & Guaranty Company v. American Blower Company
| Decision Date | 30 April 1908 |
| Docket Number | 6,445 |
| Citation | 84 N.E. 555,41 Ind.App. 620 |
| Court | Indiana Appellate Court |
| Parties | UNITED STATES FIDELITY & GUARANTY COMPANY v. AMERICAN BLOWER COMPANY |
From St. Joseph Circuit Court; Francis E. Lambert, Special Judge.
Action by the American Blower Company against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Charles Martindale, C. P. DuComb and Anderson, Parker & Crabill for appellant.
Romig & Miller, for appellee.
Roby, C. J., absent.
Appellee, plaintiff below, alleged, in substance, in its complaint, that on June 20, 1903, the Decatur Pulmbing and Heating Company entered into a written contract with the school city of South Bend, Indiana, to erect a steam heating and ventilating plant in the grammar school building then being constructed, and to furnish all material and things requisite to execute said work, said school city agreeing to pay therefor the sum of $ 8,669; that on the same date said heating company and the appellant herein executed a joint and several bond, made part of the complaint by exhibit, binding themselves in the sum of $ 4,300 that said heating company "would, among other things, pay for all material employed, used or furnished in said work, in carrying out said contract, in erecting, constructing and installing said heating and ventilating plant and apparatus, and all attorney's fees;" that by a written contract, executed on or about December 22, 1904, appellee agreed to furnish said heating company said heating company to pay therefor $ 1,036; that appellee performed all conditions of said contract by it to be performed, and furnished said fans, furnishings and heater sections; that said heating company has failed and refuses to pay appellee said $ 1,036; that said fans, furnishings and heater sections were used by said heating company in the construction of said heating and ventilating plant in said grammar school building; that a reasonable attorneys' fee was $ 200. There was a prayer for judgment in the sum of $ 1,036, with interest and attorneys' fee.
Appellant answered in three paragraphs, substantially as follows: (1) General denial. (2) Admitting the bond and contract alleged in the complaint, but setting up as a defense that subsequently thereto, "in consideration of the separate promise of the school city to pay it an additional sum of $ 1,300, the plumbing and heating company agreed to extend the work to be done by it, as specified in said original contract, so as to connect the old school building situate across the alley and immediately south of said grammar school building with said heating and ventilating system; that said alteration and change of said contract was made without this defendant's knowledge or consent, and the same greatly increased the burdens of said plumbing and heating company, and was not and is not a change in the work provided for and contemplated in and by the provisions of said original contract." And furthermore, that said school city, by said contract, was bound to retain possession and control of twenty per cent of the contract price until the completion and acceptance of said work, and then pay the same over to said heating company, provided the terms of said contract had been performed, but that the amount retained was less than $ 300, which was a material alteration of the contract. (3) Relying upon the failure of said school city to retain twenty per cent of the contract price until the completion of the work.
The errors assigned and considered in the briefs are: (1) Sustaining the demurrer to each of the second and third paragraphs of the answer; (2) overruling the motion for a new trial.
Appellant contends that the facts set out in the second paragraph of the answer show such an alteration of the contract, for the due performance of which it became surety, that it is thereby released from its liability. The averments are that for an additional sum of $ 1,300 said heating company agreed to connect this heating plant with a certain other building across the alley from said grammar school building. There are no allegations whatever to show that such extension would in any way interfere with, delay or in any manner alter or change the performance of the contract for which appellant became surety. In fact the natural deductions to be drawn from the averments of this paragraph are that this second contract is entirely separate from and independent of the agreement for which appellant became liable. The cases cited by appellant establish the rule that, in order to release the surety, there must be a change or alteration in the subject-matter of the contract. But this rule does not extend to independent contracts entered into between the same parties pertaining to additional subject-matter. Barclay v. Deckerhoof (1892), 151 Pa. 374, 24 A. 1067; Fitzpatrick v. McAndrews & Collins (1888), 12 Pa. Co. Ct. 353.
Appellant further insists that it was released from liability on its bond by reason of the fact that said school city violated its contract by failing to retain in its possession and control twenty per cent of the agreed price until the completion of the work.
The bond executed by appellant was as follows:
...
To continue reading
Request your trial