51 Ind. App. 19 | Ind. Ct. App. | 1912
— Action on a contractor’s bond. On July 31, 1906, appellee entered into a written contract with the firm of Phelan & Moore, contractors, for the erection of a dwelling-house. To secure the faithful performance of such a contract a bond was given, with appellant as surety.
Appellee brought this action against appellant alone as surety on said bond. There was a judgment in favor of appellee for $566.13 and $50 attorney’s fees, and from this judgment this appeal is prosecuted.
The complaint, after averring the execution of the contract, bond and specifications, and setting out the same, avers, in substance, that appellee complied with all the terms of said contract “except as herein otherwise set forth,” and that Phelan & Moore failed and refused to comply with the same. It is then averred that long before the house was completed, Moore left the work and Phelan refused to proceed; that appellant was notified in writing of said failure, and refused to finish the building for his principals; that appellee, after said request of appellant, “in order to save said
The contract referred to provides that for the consideration named, Ph'elan & Moore contract, covenant and agree to do and perform all the work in the best and most skilful and faithful manner and to furnish and provide all the material for the erection and building of a dwelling house erected upon * * * . The party of the first part, may, at any time during the progress of said building, .make any alterations in the plans, material or the erection of the work, and the same shall in no way effect or make void this contract, but the costs of the same will be deducted or added from the amount to be paid under this contract as the case may be. ’ ’ Provision is also made for payment by the second parties of all artisans, laborers and material, and to save harmless and indemnify first party on account of liens for the same, which provision is in effect the same as that in the bond hereinafter set out. It is further provided that in case second party fails to erect said building in the manner and at the time named, first party, by giving second party three days’ written notice, can “put as many men at work on said building and furnish such materials as he may think fit, at the expense” of second party, and complete such building. For the faithful performance of the contract first party was to pay $1,833.80, in the manner set out, reserving twenty-five per cent thereof until completion and acceptance of the work, at which time said reserved sum was to be paid. “ Provided, the terms of this contract are complied with, and the wages of artisans and laborers and all persons holding
Said bond provides as follows: “That, whereas the said Phelan and Moore have entered into an agreement of even date herewith, which agreement is referred to and made a part of this bond with the said Maurice Reilly to do and complete a dwelling house according to the plans, conditions and stipulations in such agreement contained and such changes as may be made therein. * * * Now should the aforesaid Phelan and Moore do and complete the said work as aforesaid, and protect and save the said Maurice Reilly and the Celtic Savings and Loan Assn. No. 3 or either of them harmless and indemnify them or either of them against any and all loss, costs and attorneys’ fees or other expenses of whatsoever nature, caused by any lien or liens or claims of any kind for labor or materials which may be created upon said building or the real estate upon which it is built by any subcontractor, laborer, artisan, person or persons furnishing materials therefor, then this obligation to be null and void; otherwise to be and remain in full force and effect. This obligation shall not be affected by any changes made in the materials, plans, execution or in the terms of said agreement. Money to be paid through bondsman.”
It will be observed that the complaint contains a general averment that the appellee performed all the conditions of said contract “except as herein otherwise set forth.” The exceptions referred to are not specifically mentioned as such, and are not certainly or definitely set out, so that, the conditions of the contract, performed and unperformed, are, by the averments of the complaint, left in doubt and uncertainty.
The averments that follow the above-quoted statement would indicate that the exception referred to related to the performance by appellee of that part of the contract to be
Appellee, so far as the allegations of his complaint show, may have so changed or altered the plans or material that entered into the building as to necessitate the excess payment, thereby making such payment, under the express terms of the contract, a proper addition to the contract price, for which appellant could not be held liable under the bond sued on.
The bond provided that the contract price of the building should be paid “through the bondsman.” The complaint shows that this provison was violated, in that appellee himself paid Moore, the contractor, and laborers and materialmen, and averments are made attempting to show reason and excuse for this violation of the terms of the bond, the sufficiency of which would be open to serious doubt on attack by demurrer.
To effect a release of the surety, it is not necessary that such alteration be in writing. Guthrie v. Carpenter, supra, 421; Phillbrook v. Emswiler (1884), 92 Ind. 590; Foster v. Gaston, supra, 104.
The overruling of the motion for new trial is also assigned as error. In determining the sufficiency of the evidence, we find the same omission and infirmities discussed in connection with the complaint, and others more serious.
The averments of the complaint were that the excess payments made by appellee “were made necessary by reason of the filing of several mechanics’ liens”. We find no evidence of any lien filed, and, in fact, as to some of the items which necessarily entered into the judgment, there was no proof that the material constituting the same went into the building covered by the contract.
It will be observed that appellee in his statement attempts
The evidence discloses* that this conversation occurred sometime in August, 1906. The contract contained a provision for the completion of the house by October 1, 1906, and for a forfeiture of an amount, left blank, for each day’s delay thereafter, as liquidated damages. Mr. Hubbard testified that he was out of the city of Indianapolis on his vacation from two to three weeks in August, and got back before September 1, and was here continuously after that time. The other contractor, Mr. Phelan, was deceased at the time of trial, and no explanation for his failure to finish the job is offered by either appellant or appellee, except the statement of some witness that Phelan told him that he was discharged, -which, it seems from the record, was afterwards stricken out.
Note. — Reported in 98 N. E. 886. See, also, under (1) 2 Cyc. 982; (3) 32 Cyc. 109; (4) 31 Cyc. 82; (5) 32 Cyc. 138; (6) 32 Cyc. 189. As to release of surety by material alteration of instrument after signing, see 28 Am. St. 215.