134 Mo. App. 237 | Mo. Ct. App. | 1908
The action is against a surety on a builder’s bond. The bond provided that the builder should build the bouse according to contract. The only portion of the contract directly bearing upon the issues as made by the pleadings is- the clause in respect to the payment of the contract price of $1,781.50. This clause reads as follows: “The said party of the first part agrees and binds itself for and in consideration of the erection of said buildings as aforesaid, to pay unto the party of the second part the sum of $1,781.50.” The proof shows that plaintiff paid the contractor $200 when the foundation of the house was completed and at about the same time executed bis note to the builder for the sum of $970, securing the same by a deed of trust on the lot of ground upon which the building was in the course of construction, which note and deed of trust the builder immediately sold for cash, which be retained. The proof further shows that the builder, after erecting the walls of the bouse and partially inclosing it, abandoned bis contract and left the State. After the builder abandoned bis contract, plaintiff
The defense set up in the answer was that defendant was discharged from bis obligation as a surety on the bond,, for the reason plaintiff departed from the terms of the contract by making the payment of $200, and indirectly the one of $970, to the contractor before the completion of the building. The court, to whom the issues were submitted, ruled against this defense and found the issues for the plaintiff, assessing bis damages at $993.20, and rendering judgment therefor in bis favor. As there was no time agreed upon when the contract price should be paid, the builder could not demand payment of any portion of the contract price prior to the completion of the building. [Coburn v. City of Hartford, 38 Conn. 290; Shanks v. Griffin, 14 B. Mon. (Ky.) 153; Thompson v. Phelan, 22 N. H. 339.] Plaintiff concedes that be was not bound to pay the contract price or any part thereof until the building was completed, but contends that as the contract does not prohibit the payment of the contract price before the completion of the building, be was at liberty to pay as be chose, in advance, as the work progressed, or on the completion of the building and in these circumstances, the payment made before the building was completed was not a departure from the terms of the contract. In support of this contention, plaintiff’s learned counsel cite the following cases: Fidelity & Deposit Co. of Maryland v. Robertson, 136 Ala. 379; Hand M'fg. Co. v. Marks, 36 Ore. 523; DeMattos v. Jordan, 15 Wash. 378.
The Am. and Eng. Ency. of Law, vol. 27, p. 496, states the laAV to be that, “Where the contract provides, as it usually does, that the OAvner shall withhold a- certain per cent of the contract price until the contractor has completed the building, the failure to withhold such money will discharge the surety, not only on the ground that it is an alteration of the contract, but that it is a surrender of security agreed to be held for his benefit.” In the same paragraph it is noted that in some jurisdictions the surety is not discharged by the failure to retain such reserve percentage.
Evans v. Graden, 125 Mo. 72, was a suit on a builder’s bond. The facts were that Rider & Son entered
The judgment is affirmed.