Wehrung v. Denham

• Decision Date: 19 January 1903
• Citation: 71 P. 133,42 Or. 386
• Parties: WEHRUNG et al. v. DENHAM et al.
• Court: Oregon Supreme Court

71 P. 133

42 Or. 386

WEHRUNG et al. v. DENHAM et al.

Supreme Court of Oregon

January 19, 1903

Appeal from circuit court, Marion county; Geo. H. Burnett, Judge.

Action by W.H. Wehrung and others, constituting the state board of agriculture of the state of Oregon, against R.T. Denham and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

This is an action upon a bond given for the faithful performance, on the part of the principal, of a contract for the construction of certain buildings and the repairing of others, entered into with plaintiff. The legislative assembly of the state of Oregon, at its biennial session in 1901, appropriated for the use of plaintiff on the state fair grounds the following sums of money, namely: For the improvement of machinery hall $585.50; for the construction of a creamery building $707.50; for the construction of a farm cottage, $695.75; and for addition and improvements to pavilion, $3,407.75. On May 6, 1901, in pursuance of the powers conferred upon it by the legislature, and for the purpose of carrying into effect the object of said appropriations, the board entered into the contract referred to with Denham, which provides that he will, "for the consideration hereinafter mentioned," and before August 1, 1901, erect and finish "the several buildings hereby agreed to be erected at fair grounds, Marion county, Oregon, provided that the said cottage be completed by June 15, 1901," conformable to certain drawings and specifications, to the satisfaction of W.D. Pugh, the architect, to be testified to by a writing or certificate under the hand of the said Pugh, and also provide such materials as are called for and required by such drawings and specifications for the erection and completion of said buildings and other work on buildings mentioned therein, "for the sum of four thousand six hundred and seventy-eight 50/100 dollars," and which, upon the other hand, provides that the state board of agriculture shall and will, in consideration of the covenants and agreements on the part of Denham being strictly performed, well and truly pay or cause to be paid to him or his assigns the said sum of $4,678.50, in manner following: "Semimonthly payments to be made seventy-five (75) per cent. of labor performed and material used. The balance, twenty-five (25) per cent. of the total contract price, to be made thirty-three (33) days after the buildings are completely finished and delivered and accepted by the architect and the party of the first part (the board), unless some defect shall meanwhile have been discovered in the said work," provided that in each case a certificate signed by the architect be obtained, stating that the work for which said payment is to be made is well done and that such payment is due. It is further stipulated that should the contractor, during the progress of said work refuse or neglect to supply a sufficiency of materials or workmen, the board should have the authority to provide materials and workmen, after giving three days' notice in writing, and that the expenses thereof should be deducted from the contract price, and "that the total sum hereinbefore expressed, to wit, the sum of $4,678.50, shall be so segregated and divided in the payment thereof as to require the sum of $585.50 for the machinery hall; $707.50 for creamery building; $695.75 for farm cottage; $2,689.75 addition to pavilion." The bond sued on was executed by Denham as principal, with J.C. Goodale and F.P. Talkington as sureties, and is conditioned for the faithful performance of this contract on the part of Denham. It is admitted, as we understand it, by the failure of plaintiff to deny certain affirmative allegations contained in the answer, that Denham entered upon the performance of the contract, and proceeded therewith until about July 10, 1901, during which time he completed, according to agreement, the farm cottage and improvements to machinery hall, and also furnished labor and materials, which he employed and used in the construction of the creamery building and the addition and improvements to the pavilion; that plaintiff paid Denham, on June 24, 1901, $286.50, being for 75 per cent. of the labor performed and materials furnished up to June 22d in the construction of machinery hall, and on July 9, 1901, made a final payment of $299, the building having been completed the day previous, aggregating the full sum of $585.50; that plaintiff paid Denham, on June 10, 1901, $401.67, being for 75 per cent. of the labor and materials furnished in the construction of the farm cottage to June 1st, and subsequently made a payment of $165, and a further and final payment of $129.08 on July 9, 1901, the day after the completion of said cottage, and that, on said July 9th, and prior thereto, plaintiff paid Denham the full 75 per cent. of the value of all labor and materials furnished in the construction of the creamery building and the improvements on the pavilion; that Denham thereafter ceased to observe the stipulations of his contract, and that plaintiff completed the work, as it was authorized to do. Judgment was rendered on the pleadings against the plaintiff and in favor of the sureties, dismissing the action, and for costs, from which the plaintiff appeals.

L.K. Adams, for appellants.

John H. McNary and F.T. Wrightman, for respondents.

WOLVERTON J. (after stating the facts).

Two questions are presented by the record: (1) Is the contract, to secure the faithful performance of which the bond sued on was given, severable, so that it may be construed as a several contract for the construction or improvement of each of the four separate buildings involved, and (2) are the sureties relieved of their obligation by the premature payment of the amounts due for work and labor performed by Denham, if such payments may be considered prematurely made?

The first question may be determined by an inspection of the contract. The bond was given to insure its faithful performance, and in order to determine the liability of the...