112 Ark. 207 | Ark. | 1914
(after stating the facts). The instructions to the jury assumed that material changes had been made and practically directed a verdict for the defendant, unless the jury found the fact to be that appellee had consented to the changes which were made. For instance instruction No.-2, given on the motion of appellant, read as follows: “If you find from the evidence that the plaintiff and the contractor, Gr. W. Norris, changed the plan and added the porte cochere after W. A. Stanton signed the bond, which made a difference of $158.50 ih the cost of the house, then the court tells you that would be a different contract from the one signed by the defendant, W. A. Stanton, and your verdict should be for the defendant, unless you further find that said Stanton consented to the change. ’ ’ The building in controversy was an elegant home, with all modern conveniences, and, in view of its size and cost, we think the court should have told the jury, as a matter of law, that all of the changes except that of the porte cochere were immaterial. It is contemplated in all building contracts that small and immaterial changes will be suggested, and will become necessary in the progress of the construction of a building, and this fact is necessarily known to one who becomes surety upon a contractor’s bond, and if the changes made are slight and immaterial, the surety is not released. Dorsey v. McGee, 46 N. W. 1018; Cook v. White School Dist., 111 S. W. 686; Nowell v. Mode, 111 S. W. 641; Hohn v. Shideler, 72 N. E. 575. The converse of this proposition was stated in the case of O’Neal v. Kelly, 65 Ark. 550, where it was held that any material alteration in the contract for the performance of which a surety is bound, without his consent, discharges the surety, and that this is so even if the alteration be for the benefit of the surety; for, “although the principals may change their contract to suit their pleasure or convenience, they can not thus bind the surety.” To the same effect are the eases of Miller-Jones Furniture Co. v. Fort Smith Ice & Cold Storage Co., 66 Ark. 287; Erfurth v. Stevenson, 71 Ark. 199; Eureka Stone Co. v. First Christian Church, 86 Ark. 212. Appellee insists as a reason which renders the bond void that some of these changes were made without consulting the architect and that other changes were ordered and made before written directions therefor had been given by the architect. If this contention is true, it shows that all parties regarded the changes in the interior of the building as unimportant and immaterial, for such was the fact, and no question in regard to these changes should have been submitted to the jury. Minor changes could have been made whether ordered in writing or not, as the provision that the architect should order in writing the changes to be made was for the benefit of the contractor, as well as the owner, and could be waived by the contractor, and was waived by him. American Surety Co. v. San Antonio Loan & Trust Co., 98 S. W. 387; Hohn v. Shideler, 72 N. E. 574; Cowles v. U. S. Fidelity & Guaranty Co., 72 Pac. 1032; Smith v. Molleson, 42 N. E. 669.
But it is not necessarily the case that the porte cochere did not involve a material change in the builder’s contract. It was originally embraced in the plans, and was then stricken out, and after the contract had been let, was reinserted. Its cost is too great for the court to say as a matter of law that it was an immaterial change. It would be more nearly correct to say as a matter of law that it was a material change provided it was a change at all. But did it involve a change in the contract for the construction of the building or was it a mere addition to the building? We think that question should have been submitted to the jury. The contractor’s bond to build a house would not be rendered void because he agreed to build something else, or some addition to the house, unless the addition involved some material change in the contract for the construction of the house. The porte cochere was not a part of the plan covered by the bond, and no liability could have arisen against the surety out of its construction. However, if its construction involved some change in the building contract, which a jury should find to be of a material nature, such change would invalidate the bond, unless the consent of the surety was secured. But if the porte cochere could be and was attached to the building without involving any material change in the plan of the building, then the fact that it was constructed would not render the bond invalid;' and,'under the circumstances of this case, the test of materiality of the change is this: Could the owner have made a separate contract for the porte cochere and could that contract have been performed without materially changing- the contract which Norris had made, and upon which appellee was surety? If this could have been done, then the contract for the porte cochere is an additional contract and not a change in the original contract.
The views which we have expressed render it unnecessary to pass upon the various instructions which were given or refused, as upon its remand the cause will be submitted to the jury upon the question whether the construction of the porte cochere involved a material change in the contract upon which appellee was surety, and, if so, did the surety consent to the change .in the contract?