252 Mo. 543 | Mo. | 1913
OPINION.
I.
(After stating the facts as above.)— The first error assigned by the appellant is, the action by the trial court in striking out that portion of its answer, which alleged as a defense that its principal, the Gilligan Company, had not been licensed to do business in this State, wherefore its contract with the. plaintiff was void; and hence the bond entered into by defendant securing the performance of said contract was also void. That is quite a novel proposition
For the foregoing reasons we have reached the conclusion that the ruling of the trial court, on the point under review, was correct, irrespective of the technical support afforded to it, by the failure of the defendant to complain thereof in its motion for new trial or properly to present the matter for review. [Shohoney v. Railroad, 231 Mo. 1. c. 142; Williams v. Railroad, 112 Mo. 463.]
II.
The appellant in this case requested no instructions except a direction to find in its favor. It complains of certain instructions given for plaintiff and a misreception of evidence. The various points discussed in appellant’s oral argument and brief arise under the foregoing assignments of error and may be disposed of by a review of the questions presented by the above classification.
III.
Attached to the bond in suit was provision that the obligor should be notified in writing of any act or default on the part of his principal, involving loss to
The answer nowhere pleads the failure to give notice as a release of defendant from its bond of surety-ship.
The respondent gave defendant the following - notices:
“Oregon, Mo., Jan. 16, 1908, Office of Chief Engineer of Nodaway Drainage District No. One.
“The Illinois Surety Company,
Chicago, Ill.
“Dear Sirs:
*559 “In compliance with the provision of yonr bond, executed to the Nodaway Drainage District No. One, securing the John Gilligan contract with said drainage district, I hereby forward you the following notice by registered letter: The time of the contract between the said the John Gilligan Company and the said drainage district expired yesterday, the 15th day of January, 1908, and the said the John Gilligan Company has failed in the fulfillment of said contract.
“We will therefore, look to you for damages arising from said failure.
“Yours truly,
“ JOHN H.'Peeet,
“Chief Engineer and Superintendent of the Works.”
And afterwards these notifications and demands:
“It is hereby ordered by the board of supervisors of Nodaway Drainage District No. 1 that the John Gilligan Company, the assignee of the original contractor, John Gilligan, and the Illinois Surety Company, of Chicago, Illinois, the surety of the said contractor and its said assignee, be notified by the attorney of the said board, that they and .each of them, are required to adjust and settle, at once, with the said board of supervisors of said drainage district, for all damages resulting to said drainage district, by the failure of the said contractor' and its assignee and their sureties, the Illinois Surety Company, to comply with his, and its contract, and the conditions of said bond, and that unless such adjustment and settlement is so made by the fifth day of' February, A. D. 1908, legal steps will be taken by said drainage district against them, and each of them, upon the said.contract, assignment and bond'; and it is further ordered, that each of said parties, the John Gilligan Company and the Illinois Surety Company, be furnished with a copy of this order, duly certified by the secretary of this board, to*560 be forwarded to each of them, to the last known post office address, by the said attorney of said district.
“I, Charles W. Lnkens, the secretary of the said Nodaway Drainage District No. 1, of Holt county, Missouri, hereby certify that the above and foregoing is a true and correct copy of an order made by the said board of supervisors at its last meeting held on the 22d day of January A. D. 1908, as fully as the same appears upon the minutes and records of the said Nod-away Drainage District No. 1. "
“Witness my hand with the seal of the said Drainage District No. 1, at the city of Oregon, Missouri, this 22d day of January, A. D. 1908.
. “O. W. Lukens,
• “Secretary Nodaway Drainage District No. 1
“(Seal Nodaway Drainage District No. 1.)”
To which this answer was made:
“January 30, 1908.
“Mr. T. C. Dungan, Attorney for Board of Supervisors, Oregon, Mo.
“Dear Sir: We acknowledge receipt of your notice of January 22d, relative to the John Gilligan Company.
‘ ‘ Same will receive our immediate attention.
“Tours truly,
“ILLINOIS-SURETY COMPANY,
“By James S. Hopkins.”
•On February 5th. respondent’s attorney sent the following letter which seems was unanswered.
“Office of T. C. Dungan, Attorney at Law,
“Oregon, Mo., February 5, 1908.
“The Illinois Surety Company, Chicago, Illinois.
“Dear Sirs: Your letter of recent date, in answer to mine, in reference to the default of the John Q-illi-gan Company, on its contract for the construction of the work and improvements, contracted by it, with the Nodaway Drainage District No. 1, and your conse*561 quent liability on your bond, was duly received, and I note what you say, as to the matter having your, immediate attention. The time expires today, and. the board has just had a meeting and have instructed me to write you in answer.
“The John Gilligan Company did not appear, although duly notified of the meeting, and so nothing' was done, or offered on their part. Mr. Stevens, the purchaser of the dredge boat, and assignee of the Gilligan contract, seemingly a good man, was present, but could do or offer nothing.
“The board refused to recognize his assignment, or to approve the same, or to extend the time to him, or to the John Gilligan Company, or to do anything until the liabilities' and damages sustained by it have been adjusted and settled by the said Gilligan Company or its surety,
“The board recognizes the right of such Surety Company to complete the said contract and work, within a reasonable time, according to the terms of the contract.
“Now, the board desires to know, at once, whether or not your company as such surety wishes to take hold, by itself, or by its contractors and employees, or to hire Mr. Stevens to finish this work, and complete the contract.
‘ ‘ The work and ditches, both main and lateral, are in bad shape and getting worse every day, and will soon fill up, unless they have immediate attention, and the damages suffered by the drainage district will be greatly enhanced and increased.
“If your company, explicitly, refuses to take charge of this w;ork, and complete this contract, then the board will feel at liberty to do it themselves, and look to the John Gilligan Company, and the surety on its bond, for all increased cost and damages sustained by such drainage district.
*562 “Please let me bear from yon, at once, as to what your intentions are in this matter, so that the hoard may act advisedly, in the premises.
“Yours truly,
“T. C. DuNgaN,
“Attorney for Board of Supervisors of Nod-away Drainage District No. 1.”
We think these notices of the defaults of the principal were all that were required to he given under the terms of the bond, the allegation of due notice in the petition, and the averment in the answer that no defaults were made' by the principal up to January 1, 1908.
After this statement of the answer, respondent was not required to prove notice for any default or omission prior to the date (about June 1, 1908) before which the answer expressly admitted no defaults or failures of the principal had existed or taken place. For as said by Graves, J., in speaking of an answer against the interests of a defendant, “It is fundamental that what is admitted by the pleadings is unnecessary to be shown by the testimony.” [McKenzie v. United Railways Co., 216 Mo. 1. c. 19.]
Although the answer of the appellant in this case contained a preliminary clause, denying all allegations of the petition, ‘ ‘ except such as hereinafter admitted; ’ ’ this, by its very terms, could not be a denial of what was afterwards both admitted, and set up as a special defense to the action. Hence it was only necessary for respondent to show that the proper notice was given of the defaults after the time, up to which appellant admitted there were none.
Now it was incontrovertibly shown that on January 15, 1908, the time limit of the performance of his contract, the principal had abandoned it and left the work in a worthless state and not half completed. That thereafter, full and prompt notices of the defaults and
Under the pleadings and evidence in this case we do not think the appellant is in any position to claim that due notice was not given to it of the defaults and failures of its principal and we overrule its contention on that point.
IY.
There is no evidence whatever that prior to the abandonment of the work by the contractor or before' the expiration of the time for its completion, any change of plan or performance was made which ma-
Y.
But the theory of the appellant is, as we gather it from the brief and argument, that the only remedy
This is but the correlative of the rule of law governing cases where the contractor is notified by the other party that he has annulled and repudiated the contract. In such cases the rule is settled that the contractor may sue at once and recover as his damages “the difference between the contract price and what it would have cost to perform the uncompleted part.” [Berthold v. St. Louis Elec. Co., 165 Mo. 1. c. 304; Chapman v. Railroad, 146 Mo. 494; Black River Lumber Co. v. Warner, 93 Mo. 374; Gabriel v. Brick Co., 57 Mo. App. 520; 2 Sutherland on Damages (2 Ed.), sec. 713; Fitzgerald v. Hayward, 50 Mo. 1. c. 524.]
The only difference between those cases and the one at bar, is that here the contract was abandoned and repudiated by the contractor and not by the coh-tractee. Necessarily the contractee is entitled to compensation on the same basis which is applicable to
After unavailing efforts to induce the appellant to take charge of . the further performance of the work, and after the principal had repudiated his contract and the time fixed therein for the work had expired, respondent undertook to complete the same under the new contracts with the other parties and brought this action against appellant for damages caused by the
The case was tried below upon the theory that respondent was entitled to recover any excess above the contract price which it had reasonably paid up to the time' of trial and would be compelled to pay for the completion of the' work, according to the plans and specifications of the original contract. This is shown by the instructions numbered 1, 2, 3 given by the court on behalf of the plaintiff, which set forth fully the original plans and specifications under which the work was to be performed, the bond and its conditions executed by appellant, together with a proper hypothesis of the facts, to' enable the jury to pass on the issues presented under this legal principle. We hold there was no error in thus submitting the case to the jury and that it was not indispensable that respondent in order to maintain his action, should first have completed or caused to be completed, the entire work; but that it had the legal right upon the expiration of the time limit of its contract, letting the work, and its abandonment in an unfinished state, to bring this action for the proximate damages caused by such breach against appellant, upon the guaranty contained in the bond in suit.
The conclusions reached above dispose of the criticism made by appellant upon the instructions given by the court and its refusal to direct a verdict.
VI.
Appellant makes some complaint as to the admission of testimony. An examination of the testimony objected to, does not sustain the view of the appellant,
The record shows that this was only part of the uncompleted work and had no reference to the cost of its entire completion. The answer further , discloses that the estimate of the expert witness was made on the cost of the work if done according to the flans and specifications of the original contract. Which was the proper basis for the estimates.
There is evidence in the record that the aggregate of the amounts paid hy the plaintiff to the defaulting contractor, and.the reasonable sum expended for the prosecution of the work up to the timé of the trial, and the further reasonable sum which must be expended for its completion in the manner provided for in the original contract, will largely exceed the amount of recovery in this case, after the deduction of the contract price, from the foregoing aggregate. According to this testimony, the verdict of the jury is well within the damages suffered hy plaintiff and the judgment thereon is affirmed.
IN BANC.
The foregoing opinion of Boetd, J., in Division is adopted by the Court in Banc.