Western Bldg. & Loan Ass'n v. Fitzmaurice

• Decision Date: 03 June 1879
• Citation: 7 Mo.App. 283
• Parties: WESTERN BUILDING AND LOAN ASSOCIATION, Appellant, v. M. G. FITZMAURICE ET AL., Respondents.
• Court: Missouri Court of Appeals

7 Mo.App. 283

WESTERN BUILDING AND LOAN ASSOCIATION, Appellant,

v.M. G. FITZMAURICE ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 3, 1879.

1. An instrument of writing is not rendered void by an alteration which neither varies its meaning nor affects its operation, but which only expresses what the law implies.

2. The question of the materiality of an alteration of a written instrument is one of law; the questions as to whether the alteration was made, and, if so, when and by whose authority, are questions of fact for the jury.

3. The insertion in a bond of the words “are held and firmly bound,” where omitted, is immaterial where the language used is amply sufficient to express the obligation intended.

4. A departure from the plans and speciflcations, for which authority may be implied from the terms of the building-contract, does not operate a discharge of the sureties on a bond given to secure the fulfilment of the contract, although the change was not necessary for the completion of the building.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

HITCHCOCK, LUBKE & PLAYER, for appellant: The question of materiality is one of law, for the court.-- The State ex rel. v. Dean, 40 Mo. 464; 2 Pars. on Con. 721. An alteration not material in law will not avoid a contract.-- Briggs v. Glenn, 7 Mo. 573; Trigg v. Taylor, 27 Mo. 245; Ivory v. Michael, 33 Mo. 398; Owings v. Arnot, 33 Mo. 406; Presbury v. Michel, 33 Mo. 542; Britton v. Dierker, 46 Mo. 591. The insertion of such words as the law implies, is not making a material alteration.-- Smith v. Crocker, 5 Mass. 540; Langdon v. Paul, 20 Vt. 217. In construing a contract, courts should look to the object the parties had in view, and should give such construction as will support and uphold the contract.-- Hovey v. Pitcher, 13 Mo. 191; s. c. 16 Mo. 436; Watkins v. Miserez, 64 Mo. 597; Gathwright v. Callaway, 10 Mo. 664; Loos v. Insurance Co., 41 Mo. 538; The State ex rel. v. Insurance Co., 44 Mo. 283; Burnam v. Banks, 45 Mo. 349; Bruner v. Wheaton, 46 Mo. 363.

SENECA N. TAYLOR, for respondents: The alteration of the bond after it was signed and delivered, without the knowledge or consent of the sureties, discharged them from liability upon it.-- Haskell v. Champion, 30 Mo. 138; Evans v. Foreman, 60 Mo. 450; Capital Bank v. Armstrong, 62 Mo. 66; Fulmer v. Seitz, 68 Pa. St. 237; Moore v. Lessee, 4 Binn. 1. The undertaking of a surety must be strictly construed, and cannot be extended by implication beyond its express terms.-- Barker v. Berry, 4 Mo. App. 584; Blair v. Insurance Co., 10 Mo. 561; Moran v. Martin, 32 Mo. 443; Miller v. Stewart, 9 Wheat. 702.

LEWIS, P. J., delivered the opinion of the court.

This is an action on a building-contract made between the defendant Fitzmaurice and Nicholas Wall, of the one part, and the plaintiff of the other part, together with a penal bond conditioned for the faithful performance by Fitzmaurice and Wall, which is also executed by the defendants Hannen and O'Connell as sureties. The contract and bond are as follows:--

“This article of agreement, made and entered into this, the fourth day of August, A. D. 1874, by and between M. G. Fitzmaurice and Nicholas Wall, composing the firm of Fitzmaurice & Wall, parties of the first part, and the Western Building and Loan Association, party of the second part, all of the county of St. Louis, of Missouri.

Witnesseth, that the parties of the first part, for themselves, their heirs and assigns, for and in consideration of the covenants and agreements hereinafter contained, do hereby agree with the party of the second part that they will, at their own proper cost and charges, furnish all the materials necessary for, and finish complete, a row of three two-story brick dwelling-houses (except excavation, rubble masonry, cut-stone work, brick-work), to be erected for P. J. Woodlock, owner of shares of said association, on the south side of Adams Street, between Summit Avenue and _____ Street, in the city of St. Louis, according to the drawings and specifications furnished by J. H. McNamara, architect and superintendent, the specifications being signed by them, the parties of the first part, and forming part of this agreement.

And the parties of the first part agree to prepare properly and commence said work immediately, and push it on, so as to have said work completed on or before the first day of November next ensuing. * * * And further, the architect shall have the right to condemn any work or materials at any time during the progress of the work, or before its final completion and reception, which shall be found not in accordance with this agreement or his written instructions.

And if such defects are not corrected, he shall have the right and power to have the same done, undone, and corrected to any extent he may find necessary, at the expense and charge of the said parties of the first part, their executors, administrators, and assigns; or, at the discretion of the architect, the same shall be put at a fair valuation, according to the contract price, and fifty per cent of the value thereof deducted from the contract price; and if the party of the second part or the architect shall find it necessary to make any changes or alteration from the original design, or in the mode of work, such change or alteration shall be made by the parties of the first part, and shall in nowise vitiate or annul this agreement, but being put at a fair valuation, shall be added to or deducted from the contract price, as the same may be; such addition or deduction to be at the expense or for the benefit of P. J. Woodlock.

And the parties of the first part agree to pay as forfeit to the party of the second part the sum of fifteen dollars per day for every day that the work shall be delayed from completion (through them), over and beyond the time specified in this agreement, such forfeit being for the benefit of P. J. Woodlock; the parties of the first part being allowed for any time they may be delayed by the other contractors on the work, or by the party of the second part. * * * And the party of the second part agrees to pay for the faithful and entire completion of the work, and for material, to the entire satisfaction of the architect, the sum of forty-two hundred dollars ($4,200), * * * all claims, liens, and demands being settled, evidence to that effect having been presented to said party of second part.

In testimony whereof, the said parties of the first part for themselves, and the president of the Western Building and Loan Association for the party of the second part, have set their hands, this the day and date first above written.

FITZMAURICE & WALL.

[Seal.]

B. LOEBLEIN.

[Seal.]

BOND.

Know all men by these presents, that we, M. G. Fitzmaurice and Nicholas Wall as principals, and J. S. Hannen and Bernard O'Connell as sureties, all of the county of St. Louis, State of Missouri, are held and firmly bound in the sum of forty-two hundred dollars, to be paid ‘The Western Building and Loan Association,’ to the payment whereof we bind ourselves, our heirs, executors, and administrators by these presents. Sealed with our seals, and dated the fourth day of August, 1874.

The condition of this bond is, that if the said M. G. Fitzmaurice and Nicholas Wall shall well and truly perform and keep all the covenants and agreements in part to be performed in the written contract dated herewith, between M. G. Fitzmaurice and Nicholas Wall, and the Western Building and Loan Association, for the entire completion, and the materials for their portion of the work of the three two-story brick dwelling-houses, then this bond to be null and void, otherwise to remain in full force and virtue.

M. G. FITZMAURICE.

[Seal.]

NICHOLAS WALL.

[Seal.]

J. S. HANNEN.

[Seal.]

BERNARD O'CONNELL.

[Seal.]”

For breaches of this contract and bond, the petition alleges that the contractors failed to have the work completed on November 1, 1874, and delayed the completion forty days beyond that date; and further, that they did not, at their own proper cost and charge, furnish all the materials for said work, but that, on the contrary, certain bills due to F. A. Fathman and the Eau Claire Lumber Company for materials furnished were left unpaid by the contractors; and mechanics' liens therefor having been perfected against the buildings, the plaintiff was compelled to pay the same in order to save the property.

Defendant Fitzmaurice made default. The defendants Hannen and O'Connell answered with a general denial, and set up affirmative defences as follows: That the bond sued on was altered in a material part thereof, after it was signed by the defendants and delivered, by interpolating the words “are held and firmly bound,” without the consent of the defendants; and that, without the knowledge or consent of the defendants, the plaintiff and the owner, Woodlock, materially altered and modified the contract, in tearing down door-frames after they had been placed as called for by the plans and specifications, and substituting others of different form and greater cost, and in changing the finish under fifteen windows from stools and aprons, as called for, to panelling; and that such changes and alterations were not necessary to be made in order to complete such houses, but were made solely to gratify the taste of said Woodlock; wherefore, the defendants, as sureties, became and were discharged. The plaintiff replied with a general denial, and the cause was sent to a referee.

The testimony before the referee tended to show that the bond was altered by interlining the words “are held and firmly bound,” but there was a conflict as to whether this was done before or after the signing. The referee found, as matter of fact, that the alteration was made after the execution and delivery of the bond, and without the knowledge or consent of the defendants. He further found that there was a delay of forty days in the completion of the buildings, beyond...