18 N.M. 82 | N.M. | 1913
OPINION OP THE COURT.
Appellant relies upon two propositions for a reversal of this cause, which may be stated as follows:
1. That the trial court should have sustained his motion for judgment based upon special findings 1 and 3, for the reason there was no substantial and competent evidence to support special finding No. 2, on which the-general verdict was based.
2. Admitting that appellant in fact made payments in excess of 80 per cent of work done, and materials in the building or upon the premises, according to the estimates of the architects in charge, even then if there was no proof by appellees that the contractor never became entitled to the payments so made in excess, judgment should have been rendered by the trial court on the special findings in favor of appellant.
Appellant insists, however, that admitting for the sake of argument there had been over-payments on some of the estimates, the fact that he had in his hands upon completion of the building more than 20 per cent of the contract price, appellees could not have been harmed by such over-payments upon the estimates, and therefore would not be discharged from liability. This contention, however, cannot be sustained, for a non-compensated surety derives no benefit from his contract, and his object is .generally to befriend the principal. In such cases the consideration moves to the principal, and of course he could be held upon an implied contract, but the surety is only liable because he has agreed to become so; he is bound by his agreement and nothing else. No- implied liability exists to charge him; he is under no normal obligation to pay the debt of his principal. Being thus bound by his agreement alone, and deriving no benefit from the transaction, he is a favorite of the law and has a right to stand upon the strict terms of his obligation. To charge him beyond its terms, or to permit it to be altered without his consent, would be not to enforce the contract made by him, but to make another for him. Brandt Suretyship G-uarantjq vol. 1, sec. 107, “And a discharge will be created by a departure from the terms of the contract respecting payments, though no injury is shown.” Welch v. Hubschmitt Co.. 61 N. J. L. 57.“
By special finding No. 2, the jury found that the owner made pa3'ments on the construction of the building in excess of 80 per cent of the value of the work done and materials placed in the building, and upon the premises. Appellant contends that this finding, (and it is upon this finding evidently that the general verdict was based) was not supported by any substantial evidence.
It may be stated in passing, that the jury might reasonably have regarded the evidence of the agent in charge of the building, as not altogether satisfactory, for the reason that he testified upon the stand that all payments made to the contractor had been made by means of checks drawn upon a bank, and yet he failed to produce and exhibit upon the trial any of the checks showing payment, but testified simply from a memorandum, without showing the loss or destruction of the cheeks. This evidence' was admitted over objection, and of course was clearly erroneous, and would not carry the same weight with the jury that the paid checks would have done, had they been produced. It is not disputed but that the admission oE the agent was properly admitted in evidence, and it has been held, apparently without conflict, that the effect of an admission, when proved, must be left to the jury and received according to its terms. 1 Ency. Ev. 615. And it has likewise been held that when a jury bases a verdict upon such an admission, and the trial judge approves the finding, the appellate court will not interfere with the trial court’s discretion in refusing to grant a new trial. Burke v. Hill, 119 Ga. 38. See also Martin v. Farrell, 72 N. Y. S. 934; Stephens v. Vroman, 18 Barb. 250.
It is also stated in 1 A. & E. Ency. Law, 723, that, “Verbal admissions, deliberately made, may afford proof of the most satisfactory character.”
For the reasons stated, the judgment of the lower court will be affirmed, and it is -so ordered.