89 Mo. App. 209 | Mo. Ct. App. | 1901
This is a suit by the plaintiffs, composing the Eullerton Lumber Company, to enforce a mechanic’s lien for material furnished to the contractor, defendant Calhoun, for the construction of certain buildings for the defendant Epstein in the city of St. Joseph, Missouri. The defendant Epstein and defendant Gernandt, who claimed some interest in the property, answered at length and substantially as follows: They admit that the defendant on the twenty-eighth day of June, 1899, contracted with defendant
There were two additional defenses set up in tbe answer, but as they were not sustained by evidence they are omitted.
Tbe plaintiffs introduced their lien and other evidence to support their cause. Tbe defendants introduced no evidence upon tbe issue now before this court, and it, therefore, follows that tbe bond set out in tbe defendants’ answer was not read
The plaintiffs’ reply admits the execution of the bond, but states that there was no consideration for the same, as it was not executed at the time the contract in question was entered into and attached as a part thereof, and that plaintiffs had no knowledge of the contract for building at the time it signed the same as security. The defendant Epstein in his answer alleges that the contract for building was entered into on the twenty-eighth day of June, 1899, and the bond was executed on the fifth day of July, 1899, before any work was done on the building, and that it was attached to and became a part of the contract. The verdict of the jury was for the plaintiffs against Calhoun for $815.33, and for plaintiffs against premises for the sum of $138.52 as a lien.
The plaintiffs contend that the court was not authorized to predicáte its instruction to the jury on behalf of the defendant and refuse instruction offered on behalf of the plaintiffs, for reasons based upon said bond, as the same had not been read as evidence and was not shown to have been attached and made a part of the contract of the builder Calhoun with said Epstein. It is true, the plaintiffs admit the execution of the bond as sureties of Calhoun, but they say that there was
The terms of the contract and bond were set out in defendants’ answer. The plaintiff read the contract to the jury. The bond was not read as evidence, as before stated. The plaintiffs by their reply not only admitted the bond, but its terms as set out by defendants’ answer, and only denied its force and effect. And besides, the plaintiffs waived the formal introduction of the bond and treated the same as in evidence by their instruction number two, which they asked the court to give and which instruction is as follows:
“The court instructs that, under the law, pleadings and evidence in the case, you will find that the plaintiffs are not liable as sureties on the bond set forth in defendants’ answer.” And again in their instruction number four they ask the court to say to the jury that, “if they believe from the evidence that the bond set forth in defendants’ answer was executed after Calhoun and Epstein made their contract, and after Calhoun had entered upon the performance of said contract, then there*216 was no consideration for said bond and plaintiffs are not liable as sureties thereon.” The plaintiffs tried their case upon the theory that the bond in question was in evidence and before the court, and they will not be permitted to have their ease retried here upon a different theory. Hackett v. Phil. Underwriter, 79 Mo. App. 16; Hilz v. Railway, 101 Mo. 36; Hill v. Drug Co., 140 Mo. 433; Pope v. Ramsey, 78 Mo. App. 157.
The undisputed evidence in the case was, that it was the understanding at the time the contract was entered into that the bond was to be given; and there was no evidence that the work had been commenced on the building before the bond was made. It would, under these circumstances, be immaterial whether the bond was attached to the contract or not. The facts showed a sufficient consideration to bind the plaintiffs as sureties on the bond. Overbeck v. Mayer, 59 Mo. App. 290; Sevell v. Porter, 52 Mo. App. 632. And whether work upon the buildings had commenced before the execution of the bond or not was immaterial, for the reason that the agreement of Calhoun, the contractor, at the time the contract was entered into, to give the bond, was a sufficient consideration for the execution thereof by the plaintiffs as sureties. Robertson v. Finley, 31 Mo. 384; Peck v. Harris, 57 Mo. App. 467; Ring v. Kelly, 10 Mo. App. 413.
We find no error on the trial of the cause. Affirmed.