44 Neb. 821 | Neb. | 1895
This action was brought in the Douglas county district court- by John N. Burke against D. A. Way, the principal, and John J. O’Rourke, his surety, on a building contractor’s bond which had been executed to Mr. Burke. There were alleged in the petition several failures of the principal to perform according to the terms of his contract, followed by a prayer for judgment for $1,500, the penal sum named in the bond sued upon. There was a verdict for the sum of $950, on which the judgment now complained of was duly rendered against O’Rourke, who alone «defended. The contract for the faithful performance of the terms of which the above bond was entered into was dated-May 12, 1891. It required D. A. Way, on or before June 24, 1891, to build to completion a certain hotel and hand ball court according to the requirements of certain plans and specifications therein referred to. The principal ■contentions which we shall consider were as to the manner in which payments of the amounts due under such contract should be made. The contract itself was prepared for signature by filling out the blanks in a printed form. This -was done by an architect in such a manner as to render applicable Mrs. Quickley’s description of bad language as an
.. “ John Burke * * * will well and truly pay, or cause to be paid unto the part— of the first part or unto-D. A. Way heirs executors administrators or assigns the sum of $2143.80 cents Dollars lawful money of the’United States of America in manner following: On - 1891,. ‡%143.80 cents — the first payment in 2 weeks or the pay Role Every two weeks as the work progresses and John Burk Reserves the wright to asomes the lumber Bills But.to keep Bach two hundred dollars untill the work is all complete and excepted when the building — is all complete and after the-expiration of 10 days when all the Drawings and Specifications have been, returned to J. W. Boileau Architect:
"Provided that in each case of the said payments a certificate shall be obtained from and signed by J. W. Boileau Architect to the effect that the work is done in strict accordance with Drawings and Specifications and that he <U W. Boileau considers the payment properly due,” etc.
In the petition it was alleged "that during the progress-of said work the plaintiff paid to the said Daniel A. Way,, upon the written certificate of plaintiff’s architect, the sura of seven hundred and sixty-eight dollars and five cents-, ($768.05).” In the answer there was pleaded an entire failure to require a certifícale of the architect showing that, the work had been done in the manner required, or, that-J. W. Boileau considered payments properly due. By reply the plaintiff denied that he was required by the terms-
“Mr. John Burke, please pay to the contractor,' D. A. Way, the sum of $100.00, as estimate on building.
“J. W. Boileau.”
“Mr. John Bork, please pay to J. C. Pottinger the sum of $25.40. J. W. Boileau, Superintendent. Charge the same to plaster account.”
“Mr. John Bork, pay P>. A. Way five dollars on account O. K. J. W. Boileau, Superintendent.”
“John Bork, please pay to D. A. Way the sum of $246.90. J. W. Boileau on building, Superintendent.”
The above are samples of such orders as were in evidence, and from the testimony of witnesses and the averments of the reply above referred to it is quite evident that whatever else was issued by Mr. Boileau precedent to payments were in the same style. It must therefore be accepted as beyond question that each payment on the payrolls was made without obtaining a certificate from the architect as to how the work had been done and that he considered the said [ ayment properly due. As we understand the written language quoted from the contract, the terms were that the first payment was to be in two weeks to D. A. Way, or the pay-roll (to be paid D. A. Way) every two weeks as the work progressed; in other words,
As to the construction to be given to the language whereby Mr. Burke reserved the right to assume the lumber bills, we áre of opinion that the district court properly
Reversed.