179 Mo. App. 333 | Mo. Ct. App. | 1914
Suit upon a bond in the sum of $2500 executed by defendants to plaintiff on May 3, 1906. In the circuit court plaintiff obtained judgment for the full amount of said bond, and defendants appealed.
The bond and the reason for defendants giving it originated' in this wise: In November, 1904, the plaintiff, Mrs. Laura B. Minor, was preparing to erect a three-story business building, with basement thereunder, at the south-east corner of Tenth and McGee streets in Kansas City, Missouri. The building was to face McGee street (which ran north and south) and was to run back east along the south side of Tenth street. The front entrance and first floor were to be on a level with the grade of McGee street. A corporation, known as the I. W. Dumm Publishing Company and certain individuals connected therewith, Mr. Dumm, Mr. Clark and Mr. Horn, were engaged at that time in publishing a newspaper, and desired to rent suitable quarters for the company, and, therefore, proposed to Mrs. Minor that she lease the building, proposed to be erected, to it. The nature of its business, however, did not require the ground floor and entrance to be on the grade of McGee street and did require that said ground floor should be three feet above said grade, as that would give more height and light and air to the basement. Mrs. Minor did not care to erect a building with its ground floor so much above the grade of the principal street on which it was located, thereby making the building suitable for a particular business only, unless she was sure of a long time rental well secured, or would be reimbursed for the
The building was duly erected and the Publishing Company entered and took possession under its lease and the printing presses and other machinery and personal property placed therein by it became subject to Mrs. Minor’s lien for the rent and for the performance of the other terms of the lease.
Jusf how long the Publishing Company continued therein and to pay rent is not known. Plaintiff attempted to prove that it continued- in business only about a year and a half and that then Mr. Woodward, one of the defendants, came into control of the business and began paying the rent on the building. Defendants objected to this as being immaterial, and their objection was sustained. Plaintiff then offered to show that, at the time the bond herein sued on was executed by the defendants to plaintiff, Mr. Woodward was in charge of the businss, paid the rent on the building and that the bond in suit was accepted at his request. Defendants objected to this and were again, sustained.
Notwithstanding these adverse rulings of the court, there is enough in the record to show that Dumm, the president of the company and Horn left the country and that in some way, either through financial embarrassment or otherwise, the Publishing Company fell into the hands of Mr. Woodward and that thereafter he, Woodward, paid the rent. The defendants are in no position to assert or complain that the evidence is not definite enough to show a formal legal transfer, sufficient to pass title, of the assets of
At any rate on May 3, 1903, just 1 year, 5 months and 19 days after the execution of the lease the bond in question was executed. At this time Mrs. Minor held the lease on the building and a lien on an“Optimus” printing press therein for the performance of all the terms of the lease. The defendants were-desirous of selling this printing press and, to get it released from Mrs. Minor’s lien, they agreed to give her the bond in question. The terms of the bond areas follows:
“We, the undersigned, O. D. Woodward and Willis-Wood, of Kansas City, Missouri, do hereby acknowledge ourselves indebted unto Laura B. Minor in the-sum of Two Thousand Five Hundred Dollars ($2500), for the payment of which well and truly to be made, we hereby bind ourselves, our successors, executors,, administrators and assigns.”
The- condition of this- bond is such that whereas -. . . (Here follows a statement that the I. W. Dumm Publishing Company leased the property on November-12, 1904) ... and
Whereas, it is provided in that lease . . .. (Here follows a statement that the front .and outside-walls were to be changed and the floor raised three feet above the street grade) . . . and
Whereas, it is further provided in said lease that “if this lease is not renewed at the end of the first term.
"Whereas, said I. W. Dumm Publishing Company in order to secure the performance of the said provisions of the said lease did mortgage or convey unto .said Laura B. Minor one “Optimus” printing press, manufactured for it by the Barnhardt Bros. & Spindler Co., of Chicago, and which was placed in the building on the property, aforesaid; and,
Whereas, the first parties desire to have said mortgage released so that said press may be sold and •conveyed free from the lien of said mortgage; and,
Whereas, said Laura B. Minor has consented to release and satisfy said mortgage in consideration of this bond;
Now, therefore, if the said first party shall faithfully perform and keep the provisions of said lease in respect to the matters hereinbefore set forth,and will .save the said Laura B. Minor entirely harmless by reason of any breach of such conditions of said lease then this undertaking shall be null and void; otherwise to remain in full force and effect.
In witness whereof, we have' hereunto set our hands and seals this 3rd day of May, 1906.
O. D. Woodward, (Seal)
Willis Wood, , (Seal).
. The Publishing Company is not a party to the bond. And it nowhere says it is given as surety for
Mrs. Minor, having taken possession of the building at the end of the leasehold term, was unable to find a tenant who would rent the building with the floor thus raised, and after demanding of defendants that they bear the expense of changing it in accordance with their bond, she had the floor changed.
Owing to the great increase in the price of labor and materials between 1904 and 1910 it was found in 1910 that the cost of lowering the whole first floor to the McGee street level, would greatly exceed the amount estimated therefor in 1904. The plaintiff, therefore, did not lower the entire floor from the front on McGee street back to the end of the building. To have done so would have cost a very large sum much in excess of what she did do. Instead of lowering the
The defendants offered no testimony. The jury found a verdict for plaintiff for the full amount of the bond, $2500, and judgment was rendered thereon.
It is the contention of defendants that they are in the position of mere sureties for the Publishing Company, and that their liability on said bond is, therefore, strictissimi juris, of the strictest right or law. Their position is that they are not liable for any amount thereon unless plaintiff put the whole of the first floor down to the McGee street grade, notwithstanding the fact that the reasonable cost of lowering it as she did was less than the cost of lowering the whole and was more than the amount of the bond.
The language of the bond itself shows that it is an original undertaking of defendants to pay Mrs. Minor the reasonable cost of placing the first floor of said building upon the street grade, including the cost of changing the outside walls and front of said building to conform to said change, if the lease is not renewed and provided she cannot rent it with the floor above grade, the amount to be paid by them, however, not to exceed $2500. “Where a surety binds himself in terms as a principal in the obligation which he signs, he will be held as principal, and will be entitled to none of the
The bond does not require, as a condition precedent to her right to be paid the reasonable cost of ■changing the floor, that Mrs. Minor must first do the remodelling. The lease says: “If this lease is not
The petition is not drawn upon the theory that the-doing of the work by plaintiff in lowering the floor is a condition precedent to her right to recover upon the
The plaintiff is not suing for work of an entirely different character from that specified in the bond. She is suing for the very work covered by it. She is entitled to recover. And the judgment should be affirmed. It is so ordered.