57 Neb. 385 | Neb. | 1899
McGavock and Doll, the plaintiffs in error, were sued by Morton on a contract alleged to have been made by McGavock and Doll with the city of South Omaha, whereby the defendants guarantied the payment by one Davis of laborers employed by him in grading certain streets for the city. It was alleged that the claims of certain of these laborers had been assigned to Morton. The contract sued on ivas tripartite. Davis agreed to do certain grading according to certain specifications, and was named as party of the second part. The city agreed to pay at a certain rate and in a certain manner, and was named as party of the first part. McGavock and Doll, who were named as parties of the third part, agreed with the city that Davis would perform his contract; and also agreed as follows: “Said parties of the third part hereby guaranty that the said party of the second part will well and truly perform the covenant
If this state of facts existed it was a complete defense to the action. The change jvas material. As the sureties signed the contract payment was to be made in warrants when the work was completed to the satisfaction and acceptance of the' engineer, the committee on streets and alleys, and the council; as the council accepted the contract, nothing was to be paid until the county should pay the city. This substantially changed the legal effect of the contract between the city and Davis, and so changed the obligations of the defendants. It was one thing to agree to pay wages if the principal did not within ten days after they fell due and when the principal was to receive money to meet his obligations when the work was done, and quite another thing to agree to so pay when the principal was not to receive anything until the happening of an independent contingency. Indeed, all the discussion in the briefs as to materiality, and a further discussion as to whether the change was a.n alteration or a spoliation, are beside the issue, because the theory is not that the contract was altered after it was made, but that the change was made after execution by one side and before execution by the other, — in other words, that because of the change at that time, regardless' of who made it, there was never a consensus. The proposition made by the defendants, by signing the contract as it first was tendered, was not accepted by the city when it approved a substantially different contract. Any change which altered the legal effect of the proposal, even if made by a stranger, would unc[er such circumstances prevent the concurrence of minds essential to make a contract.
Lest what has been said as to the tendering of an appropriate instruction should in the further progress of the case be misunderstood, it may be well to say that we mean appropriate under the condition of the evidence then existing. It omitted' altogether the element of knowledge of the change or ratification thereof by the defendants. Of course, if they learned of the alteration and assented thereto after the signatures were affixed, the defense would be unavailing; but there was no evidence whatever to show such a state of facts, and there Avas evidence to the contrary. Therefore the instruction omitting that feature was properly asked as applicable to the evidence then before the jury.
Reversed and remanded.