14 Mont. 131 | Mont. | 1894
It appears that plaintiff entered into a contract, evidenced by writing, with defendant Davie, whereby the latter agreed, for a certain consideration to “provide and furnish all material, and do all labor necessary to the erection and completion of a two-story frame dwelling-house” for plaintiff, according to certain plans and specifications, made part of the contract. To guaranty the fulfillment of that contract, a bond was executed by defendants Renner and Cornelius, and
Appellant insists that the bond in question is wholly Void because Davie, named therein as principal, did not sign it along with the sureties. But, after much consideration of this subject and the authorities, we cannot sustain that view. The same obligation was fixed upon Davie by another contract, and Renner and Cornelius undertook and promised, in writing, to answer for the default of Davie in respect to his engagements by virtue of that contract, which the sureties described in their bond. This bond was a collateral engraftment upon the building con
Appellant further contends that, because there was no provision in the building contract specially requiring Davie to pay for the labor and material put into the construction of the building, his obligation was fulfilled by furnishing the same, and was not broken by his failure to pay therefor, and leaving the building, and also the lot on which it was erected, subject to sale to satisfy demands for said materials and labor. This interpretation of the contract, we think, is untenable. Parties are deemed to contract in view of the law relating to the subject of the contract. Davie fell short of furnishing the material for the structure, as contemplated by his contract, when he merely obtained and used such material in the structure, leaving upon plaintiff the burden of paying therefor. That was not furnishing the material and labor according to the terms of the contract, any more than one would fulfill a contract to convey a piece of land to another by making a good and sufficient deed therefor in form, while the title to the land in no manner passed by such deed. (Colburn v. Northern Pac. Ry. Co., 13 Mont. 476.) It is contended that plaintiff should
During the trial, at the close of the introduction of evidence on behalf of plaintiff, the court overruled a motion for non-suit interposed on behalf of both defendants Kenner and Cornelius, but granted a motion to dismiss the case as to defendant Cornelius, leaving the case to proceed against Kenner. As we understand from the record and briefs of counsel, this ruling was made because plaintiff was unable to prove that Cornelius signed the bond with the understanding that it should be delivered and have effect without the signature of Davie, the principal named therein. In our opinion it was not necessary to show an express understanding to that effect outside of the bond. Substantially, all that proposition implies is that Cornelius admits he signed the bond, intending to be bound according to its terms, if the principal Davie was likewise bound along with him. Sufficient answer to that proposition is that, under the law and the facts, Davie is bound as principal to discharge those very same obligations which the sureties, through the bond, guaranteed he would discharge; otherwise, the sureties would not be bound for his default. For, if the principal was not bound to do the thing in question, there could be no default on his part, and hence no liability on the part of the surety; because the surety is only bound to answer for the default of the principal named in the bond in respect to those things which the principal was bound by the contract to perform. The contract is described in the bond
Both parties to this appeal insist that the court erred in dismissing Cornelius, and giving judgment alone against Renner. When the case was dismissed as to Cornelius, Renner moved again for dismissal as to himself, because it clearly appeared that he refused to sign the bond unless accompanied in that obligation by Cornelius; and when Cornelius was dismissed, as defendant in the suit, because the court held there was not sufficient showing to bind him, that gave peculiar force to the showing that Renner refused to engage in said obligation unless joined therein by Cornelius.
But, while respondent’s counsel claim that the court erred in dismissing Cornelius, they say they are satisfied with the judgment as it stands against Renner, and insist that appellant cannot complain of it, because the obligation sued on—that is, the bond—is a joint and several obligation. Respondent’s counsel may be right in their position that, under the law and the terms of the obligation sued on, they have a right to proceed against one surety alone. But in this case they have proceeded against both sureties, and it has been adjudicated and determined in this action that the cosurety with appellant is not liable. If this determination is erroneous, as both appellant and respondent insist, and as this investigation leads us to conclude, then appellant has serious reason for complaint. The liability of his cosurety to share the burden of loss by reason of Davie’s default has been removed by this adjudication; and, while such determination stands, appellant would be unable to compel contribution from his cosurety, which would not be the case if one surety had been proceeded against severally. On this point, alone, we think the court erred.
Judgment modified and affirmed.
Affirmed.