| Kan. | Jan 15, 1894
The opinion of the court was delivered by
The question to be considered is, whether the plaintiff’s proof showed a substantial change in Heidelburg’s contract to construct the abutments and approaches to the bridge after the execution of the bond sued on. It is somewhat difficult to treat the report of the county surveyor, indefinite as it is, as plans and specifications, yet, inasmuch as this is evidently what the parties had in contemplation when the contract was let and the bond executed, it must be so regarded. The specification as to the west abutment, which is the one that fell, is that it shall be 7 by 20 feet at the base; 3 by 16 feet at the top; 26 feet high, and containing 90 cubic yards. This is definite as to dimensions and form, and calls for a four-sided structure, sloping in presumably on all sides. The structure actually erected and accepted by the plaintiff had wing walls at the ends, the stone of which were interlocked with those of the main part of the abutment. The bond executed by the defendants requires them to keep the work in repair. Can we say that to repair such a work is the same thing as to repair an abutment of the form and dimensions specified in the county surveyor’s report? Clearly, not; for in rebuilding, the wing wall, when made to interlock, would necessarily affect, to a greater or less extent, the work on the main part. By acceptance of and payment for the work as done by Heidelburg, the county court ratified his action. The contention made in this court, that Heidelburg alone changed the plans, without the knowledge and consent of the plaintiff, and that the changes were for his own benefit, are without force, in view of the full ratification which the acceptance of the work and payment, not only of the amount contracted for, but for the wing walls as well, must be held to be. The rule of law is elementary, that the contract of a surety is to be strictly construed. It is well settled that the sureties on a bond to secure the performance of a building
It appears that the amount of masonry required by what is treated as the plans and specifications was 130 cubic yards, while the county accepted and paid for 288f cubic yards. It is urged that the estimates were only approximate, but the dimensions given are specific, and must be held to be controlling, for there is nothing whatever in the report to indicate any right by either party to change size or base, top or height. It is said that the construction of wing walls was necessary to sustain the earthwork in the approaches; and it is also urged, and there is evidence tending to show, that wing walls would strengthen and secure the abutments; but this is hardly a question as to what is best for the parties interested. The sureties bound themselves only for the faithful construction and keeping in repair of the abutments described in the specifications. If it appeared in this case that the wing walls were separate and distinct structures, and that the piers, as built and accepted, were substantially in accordance with the original plan, we might say that the wings were something for which the defendants were in nowise responsible, but which the plaintiff had a right to employ Heidelburg to erect under a separate contract; but the evidence in this case shows that there was no other contract between the parties; that the wing walls were directly connected with the abutments, and no separate measurement was made, or is shown by the evidence, from which we can determine anything about the form or dimensions of the west abutment as in fact erected.
We think the plaintiff’s evidence shows a substantial departure from the contract by Heidelburg, which was ratified and approved by the county court of Morgan county, and that the defendants in this case were thereby released from their obligations under the bond. The judgment is affirmed.