103 Mo. App. 716 | Mo. Ct. App. | 1904
— Action on a contractor’s bond, originally brought against the firm of Lyons Bros., the contractors, the National Surety Company of Missouri and the National Surety Company of New York. .We gather from the record that the case was dismissed as to the firm .of Lyons Bros. That firm contracted with the plaintiff Manny to build him a house and gave bond for the faithful performance of the contract with the National Surety Company of Missouri as surety thereon. The bond bound the Lyons Bros, to well and truly perform and fulfill the stipulations and covenants of the contract, keep Manny harmless and indemnified against all claims, demands, judgments, liens, mechanic’s liens, costs and fees of every description incurred in suits or otherwise, that might be had against him or against the improvements to be constructed under said contract, and repay to said obligee all sums of money which he might be obliged to pay on account of labor done or materials furnished for said improvement, etc. After the completion of the house, the O’Connell Painting Company filed a lien against the premises and brought suit to enforce it. The National Surety Company of Missouri, as surety on the bond, was notified to defend the case and did so. It- resulted in a judgment enforcing the lien against the
The answer set up as a defense that the plans and specifications for the building were changed without the consent of the Surety Company of Missouri and that the alterations and changes made in the work during its progress involved a difference in the cost of construction of more than $500. The answer further pleaded as a defense that plaintiff made payments to Lyons Bros, before they were due under the terms of the building contract and, further, that this is an action on a bond of indemnity and can not be maintained against the surety company until plaintiff has exhausted his remedy against the principals.
The reply, besides a general denial, set up an estoppel against the surety companies, based on the letter of their attorneys to plaintiff after judgment in the lien suit in which it was said there was no defense to the suit
We think the points made by the defendants are without merit.
Plaintiff also appealed and his complaint is based on the contention that the judgment in this case should have been for the full amount of the judgment recovered in the lien suit, as well as for the costs recovered in that action. We can not agree that Manny is entitled to recover against these sureties the sum he had to pay the painting company under the new contract pf or he had no bond covering the new contract. We think he is entitled to recover the costs he paid out in that action, to-wit, $28.80. He is also entitled to be reimbursed the $497 plus the interest which had run on that sum to the date of the judgment and the interest on that amount plus the amount of the coste from the date he satisfied the judgment until now. We compute the total amount which plaintiff is entitled at this time to recover at $707.34, for which sum judgment will be entered here.
Wherefore, it is' considered and adjudged by the court that the plaintiff take nothing by his suit herein against the defendant National Surety Company, incorporated under the laws of the State of Missouri; but that said defendant go hence without day; and that the plaintiff recover of the defendant National Surety Company, incorporated under the laws of the State of New York, the sum of $5,000.00, the penalty of the bond sued on herein, to be satisfied upon the payment of $707.34, the damages assessed as aforesaid, together with costs of suit, and that execution issue against said defendant