161 Ind. 610 | Ind. | 1904
— Appellant, by his complaint, sought to establish and foreclose a material man’s lien against a lot owned by appellee Marie E. Billman for lumber furnished by him and used in the construction of a dwelling-house on said lot. It appears from said complaint that appellee Charles D. Billman, the husband of his co-appellee, with the knowledge and consent of his said wife, entered into a contract, in his own name, with one Levi A. Worley, to construct and complete said building, and that as her agent he conducted and superintended the construction of said house. It is further shown by the allegations of said pleading that said Worley purchased lumber of appellant to the amount of $863.35, and that such lumber was used in the carrying out of said contract. It ■ is unnecessary to set out the remaining allegations of said complaint.
It is charged in said paragraph of answer that defendant Charles D. Billman, acting for his wife, entered into a written contract with said Worley, whereby the latter agreed to furnish and pay for certain materials to be used in the erection of said dwelling, and to construct and complete the same; that as a part of said transaction said Worley, as principal, and plaintiff, as surety, executed and delivered to said defendant Charles D. Billman a bond in the sum of $1,500, for the use of his codefendant, con-, ditioned to build, construct, and complete the residence mentioned in said contract; that the material furnished by plaintiff was material which it was the duty of said Worley under said contract to furnish in the construction of said building, and that said Worley, instead of paying for said material, had permitted the plaintiff to file a lien against said real estate, and thereby violated the terms of said contract, and that, by reason of the breach of said contract, plaintiff, as surety, had become liable on ^said bond for whatever amount was unpaid on account of the 'purchase price of said material. Copies of the contract and bond are made exhibits tó said answer. The contract, which is dated July 19, 1900, provides that in consideration $1,185 said Worley is to furnish for said Charles D. Billman all lumber, doors, .frames, sash, and all other materials for the erection of said house, except for the foundation thereof and certain plate and art glass, and that, upon the completion of the foundation, said Worley is to build and construct said residence in accordance with certain plans and specifications. It is further provided in
On behalf of appellant it is contended that no breach of the bond is shown, as it is not alleged that said Worley did not construct and complete said house in accordance with said plans and specifications. Although sureties and guarantors are favorites of the law, and are not to be held beyond the limits of their engagements, yet the meaning of language must be the same in construing their contracts as if they were executed by the principals alone. Mr. Brandt, in his work on suretyship and- guaranty (2d ed.), §94, says:. “The rules for construing the contract of a surety or a guarantor should by no means be confounded with the rule that sureties and guarantors are favorites of the law, and have a right to stand upon the strict terms
As the bond in question refers to the contract, the two instruments are to be construed together. Singer Mfg. Co. v. Forsyth, 108 Ind. 334; Wright v. Griffith, 121 Ind. 478, 6 L. R. A. 639. The provision of the bond that Worley shall “build, construct, and complete the said residence” would alone seem sufficient to require him to furnish and pay for the necessary materials, so as to deliver them free of lien. Mackenzie v. Board, etc., 72 Ind. 189.
Construing the contract as requiring Worley to pay for the lumber used, the case of McHenry v. Knickerbacker, 128 Ind. 77, is a precedent directly upholding the conclusion reached by the court below. Appellant was not a surety, although he joined with the principal obligor in the signing of the bond, because his undertaking was that his principal would perform the contract which was collateral to the bond. LaRose v. Logansport Nat. Bank, 102 Ind. 332; Furst, etc., Mfg. Co. v. Black, 111 Ind. 308. Appellant was a guarantor, and as such covenanted that his principal would perform the main engagement, or that he (the guarantor) would answer in damages for the default. LaRose v. Logansport Nat. Bank, supra. It is clear that the principal Worley has failed to perform the building contract in manner and form as appellant contracted should be done, and we are of the opinion that if the answer stated facts sufficient to constitute a good complaint against appellant it should be treated as a suifi
We think that the answer disclosed prima facie a cause of action against appellant for the failure of his principal to deliver the materials sued for free of lien. The contract of guaranty was executed contemporaneously with, and-as a part of the consideration of, the transaction guaranteed, and notice of acceptance was not required. Wright v. Griffith, 121 Ind. 478, 6 L. R. A. 639.
The burden was on the guarantor to plead and prove an omission to give notice of default, and that he was damaged by reason of such omission. Ward v. Wilson, 100 Ind. 52, 50 Am. Rep. 763; Stanley v. Stanley, 112 Ind. 143. So any further matter which would have been a defense to an action on the guaranty should, if it existed, have been set up in this case by way of reply.
We find no error in the record. Judgment affirmed.