134 Mo. App. 421 | Mo. Ct. App. | 1908
On August 31, 1905, the appellant school district entered into a contract with J. W. Boyle for the erection of a schoolhouse; or attempted to make such a contract, the effectiveness of the attempt being-disputed on the contention that the full contract and its consideration were not in writing as required by the statutes. [3 Mo. Ann. Stat., sec. 6759.] We will not decide this question, because we think the appeal must fail on another ground. Conceding there was a lawful contract, it provided Boyle should complete the schoolhouse by January 1, 1906; that it should be built in accordance with plans and specifications which had been submitted to the school hoard by J. G. Vincent, an architect, and approved by the board, and that said plans and specifications should constitute a part of the contract; that Boyle should be paid forty-one hundred dollars, and a warrant for said sum should be drawn as soon as he had given bond in the sum of forty-three hundred dollars for the performance of the work. Boyle
“All the above property and cash and note received from Mollie Boyle to apply on payment of the finishing of schoolhouse which J. W. Boyle failed to finish, and the above being all received of her except such book accounts and papers now held in Bank of Naylor, and we, the undersigned, agree to give the said Mollie Boyle and J. W. Boyle no further trouble from the time said papers and property shall have been fully turned over to us, leaving 'to their honor any further payments which they may see fit to make at any future time; we holding only such property and papers now in our hands and to be delivered, thus releasing all claim to*425 tbe property which Mollie Boyle now lives in from any claim to us.
“Signed and delivered the day first above written.
C. B. Armstrong,
Geo. S. Green.”
During the course of the work the plans and specifications were deviated from in several particulars. The specifications called for full-length joists overhead in the second floor, and instead of using such joists, columns were put in the building, running to the roof, and short joists were extended from either side to the center where they were supported by these columns. Cement window sills were made instead of oak sills which the specifications called for. The evidence, tends to show the windows and doors were placed differently from where the plans indicated they should be. The specifications said trenches for the foundation should be excavated twenty-four inches in depth and thirty inches in width, and be filled to the height of one foot above the ground with solid concrete, well tamped; said concrete to be made of good Portland cement and gravel, or crushed stone and sand properly mixed, and applied to assure first-class work. Instead-of this being done, Portland cement was not used in the foundation. The contract called for good merchantable red brick, well burned and uniform in color. Part of the brick used were according to specifications and part were not; and brick of different colors were used, in consequence of which the walls were painted, a work not called for by the plans and specifications. The sureties were not shown to have assented to these changes. The testimony goes to show that when Boyle abandoned the job, the interior of the house was unfinished, and it would cost from twelve to fifteen hundred dollars to finish it. Meanwhile Boyle had been paid the full contract price of forty-one hundred dollars,, and this action was instituted against three of the sureties on his bond to recover the loss the
1. Various points urged by tbe parties may be put aside if, as respondents contend, they were released from liability as sureties on tbe bond by tbe deviations from tbe plans and specifications which occurred during tbe progress of tbe work. These changes were testified to by Boyle himself, and that they were made is not
“By whose authority and whose consent were these changes made? A. By the building committee; the members.
“Q. Who suggested the changes? A. Well, I think some of the changes were suggested by some of the members of the board, before the building was started in regard to the long joist, gome of them thought it would not make as good a house as it would be to put in columns.”
2. It is insisted respondents are estopped to defend against liability on Boyle’s bond because they appropriated the material he had on hand when he left, sold it and converted the proceeds to their own use, and some of them requested the school district not to be in a hurry about suing on the bond until the sureties had time to see “what could be done about getting things in shape to go on with the building.” In this interview the board asked the bondsmen to promise to finish the schoolhouse, but this promise was not given; the bondsmen merely requesting that suit be postponed until Boyle was heard from, or, as said, until they had time to see if an arrangement could be made to go on with the building. As far as the controversy between the school district and the bondsmen is concerned, no element of estoppel appears. The district was not induced in any way to alter its position by what the bondsmen did in respect of the material left by Boyle
The judgment is affirmed.