| Mo. Ct. App. | Oct 5, 1908
Action on a bond executed by defendants Sproul, as principal, and Toll, as surety, to secure the faithful performance by the former of a contract made by him with plaintiff for the erection of a business building on premises owned by plaintiff in St. Joseph. A jury was waived by the parties. The trial resulted in a judgment for plaintiff and both defendants appealed. The bond executed December 30, 1905, was in the penal sum of $25,000, and expressed the following obligation: “The condition of the above obligation is such that whereas the said contractor (defendant Sproul) has entered into a contract with the said owner (plaintiff) to do certain work and furnish certain materials for the said owner: Now, therefore, if the said contractor shall well and truly perform said work and shall furnish all material in accordance with
It is alleged in the petition , and the proof shows that defendants failed to protect the property against mechanics’ liens and that plaintiff was compelled to pay the demands of a number of lien claimants in order to prevent its property from being sold under executions. The court, after deducting the credits and offsets found the aggregate amount of plaintiff’s loss on account of such outlays to be $8,417, and assessed plaintiff’s damages at that sum in the judgment entered.
Defendant Toll presents the special defense, duly pleaded in his answer, “that without the knowledge or consent of the surety, certain changes in the contract were made by the owner and contractor which provided for additional work and materials the price of which was not agreed to in writing before said work was begun or said materials were furnished.” This defense is founded on the specifications (by reference made part of the contract between the owner and contractor) which provided “should the owner at any time during the progress of the work ret] nest any alterations, deviations, additions or omissions from the contract, he shall be at liberty to do so and the same shall in no way affect or make void this contract or bond, but will be added to or deducted from the amount of the contract as the case may be, by a fair and reasonable valuation. The
To escape liability on the bond, the surety relies here on two changes in the plans and specifications which were made on oral agreement of the owner and contractor, after the execution of the contract and bond and without notice to the surety. First, the trenches for the footings of the foundations and walls and the concrete footings were made deeper and wider than specified, resulting in extra expense of $593, which the owner paid the contractor, and, second, the form of the building was altered slightly. The plans and specifications describe a building four stories high, 263 feet long, 120 feet wide, and in the form of a right-angled parallelogram. When the work was begun, it was found that the street on which the building would front slightly varied from a true course, and if built as designed, one of the front corners of the building would be on the street line and the other four or five feet therefrom. It was on the suggestion of the contractor, reluctantly adopted by the owner, that the form of the building was changed to that of a rhomboid, in order that the front wall might be parallel with the street. If we were sitting as a tiler of fact, we would find from the evidence that the contractor offered to make the alteration without extra charge, but since the trial court found otherwise by allowing the contractor a credit of $254.41, as the extra cost to him of the alteration and the finding is supported by substantial evidence we shall treat it as we would the verdict of a jury. The deepening and widening of the foundation was made necessary by the nature of the soil encountered in the excavation of the trenches. This necessity was recognized by the owner, architect and contractor, and the change.
Shortly after the work was begun, the contractor, prompted hy his subcontractor, requested that the owner put in writing the agreement to pay for the extra work, whereupon plaintiff wrote a letter addressed to the architect in which he agreed to pay $6 per yard for the extra concrete and twenty-five cents per yard for the extra grading. Counsel for defendant Toll argue that since the provision of the contract to which we have referred required the price “to be agreed upon in writing before being put into execution” this letter, written while the work was in progress, was not a compliance with that requirement under the strict rules of construction which obtain in favor of a surety. We shall concede only for the purposes of argument the soundness of this position and, dismissing this letter from consideration, shall treat the feature of the case now before us from the standpoint that with respect to the alterations of the plans and specifications, the price of the extra work in neither instance was agreed on in writing.
This omission should not be held to have released the surety from the obligation of the bond for the reason that under no reasonable construction of the contract between the owner and surety may it be said that' the alterations in question belonged to the class which the contract contemplated should be made only on a written contract between the owner and contractor fixing the price of the extra work. Should we concede that the stipulation in the specifications is inconsistent with that in the bond and that they should be construed together as parts of one contract, it would avail defendants nothing. Clearly, the intention expressed in the provision in the specifications was to provide a method by which the owner might compel the contractor to make such changes in the plans and specifica
The surety will not be released on the ground that the alterations were made in an unauthorized manner.
Both defendants tender in their answers, and argue here, a defense based on alleged false and fraudulent representations made by plaintiff to defendant contractor by which he was induced to reduce .materially his bid beloAv what it would have been had he not been deceived by the representations. The declarations of law given show quite clearly that the court found the facts against defendants on this issue, and we do not see how a different conclusion could have been draAvn from the evidence. It is enough that AAre find in the record substantial evidence supporting the finding. We shall not weigh the evidence nor do we deem it necessary to discuss its details pro and con.
Complaint is made of the following declaration of law given at the instance of plaintiff: “The contract between plaintiff and Sproul Avas executed on the 28th day of December, 1905, before the bond in suit Avhich was executed on the 30th day of said December. As betAveen piaintiff and Toll, their stipulation written in said bond modified, with the consent of Sproul, the stipulation in the building contract as far as any inconsistency may exist between them and the stipulation in the bond controls so far as defendant Toll is concerned.” The proposition of law thus declared is sound but, as Ave have indicated, its employment was not necessary to a proper disposition of the case, since, on the hypothesis that bond and contract are consistent AAre have found that the surety should not be released.
The judgment is affirmed.