195 P. 852 | Mont. | 1921
delivered the opinion of the court.
This is an action brought by respondent against appellants to recover damages upon a bond executed by the appellants George H. Pew, as principal, and Fidelity & Deposit Company of Maryland, as surety, it being alleged that Pew entered into an agreement to build for respondent a water-tight basement or cellar under a certain bank building by him to be constructed, as contractor and builder, at the town of Darby, Ravalli county, Montana. The bond is in words an& figures as follows:
“Fidelity & Deposit Company of Maryland,
“Home Office: Baltimore, Maryland.
“Bond.
“Know all men by these presents, that we, George H. Pew, of Missoula, Montana, as principal, and Fidelity & Deposit Company of Maryland, as surety, are held and firmly bound*147 unto the State Bank of Darby, Darby, Montana, in the full and just sum of one thousand dollars ($1,000.09) for the payment of which sum we 'bind ourselves, our heirs, executors and administrators, successors and assigns, firmly by these presents.
“Signed, sealed and dated this 20th day of July, 1914.
“The condition of this obligation is such, that, whereas, the ab’ove-bounden principal did on the 24th day of June, 1914, enter into a contract with the said State Bank of Darby for the construction of a certain bank building on lot 1, block 7, in the town of Darby, Montana, and did guarantee therein that the basement or cellar of said building should be and remain water-tight for the period of one year from the date thereof;
“Now, therefore, if the basement or cellar’of said bank building shall be and remain water-tight (as applied to the commonly accepted meaning of the word water-tight as applied to the cellars of buildings) for the period of one year from the date hereof, then this obligation to be null and void; otherwise to remain in full force and effect. ^
“It is understood and agreed between all the parties to this bond and the condition upon which the surety executes the bond, that in event of a claim by the said bank under this bond the surety shall only be liable for actual and material damage to said bank or said building by the failure of the cellar or basement to be water-tight as aforesaid.
“ [Signed] Geo. G. Pew, “Principal.
“Fidelity & Deposit Company of Maryland, “By W. L. Berry, “Attorney in Fact.
“[Seal] Attest: W. S. McCrea,
“General Agent.”
By “rider” for a valuable consideration it was extended by the surety, as to term, to November 1, 1915.
It is alleged by respondent that “Owing to the negligent and fraudulent construction of such basement by the appellant
The.separate answer of the Fidelity & Deposit Company'admits that appellant Pew entered into a contract with the plaintiff to construct the building; that Pew constructed the basement, and that it signed the bond set out in the complaint, and denied all other allegations of the complaint. It also relies and pleads the same three, separate defenses made by appellant Pew. The only new matter contained in the replies filed by the respondent is that the specifications, which were a
The case was tried before a jury, and a general verdict rendered in favor of respondent for the sum of $875. The appeal is taken from the judgment and order made by the trial court denying appellants’ motion for a new trial.
The pivotal and only material question involved in this case
The building contract bears date June 24, 1914, and the required bond for the performance thereof ($3,000) was furnished by the appellants dated July 13, 1914, wherein exception of responsibility is made of requirement “in the contract or specifications respecting guaranties of efficiency or wearing qualities or for maintenance or repairs, nor does it obligate the surety to furnish any other bond covering such provisions of the contract or specifications. ” In the specifications made a part of the building contract by reference, the bond made the basis of this suit is provided for in the following language: “Guaranty: The contractor shall, upon receiving the final payment for this work, deliver to the owner a written and signed guaranty that the foundation shall be water-tight for a period of one year from the date of final acceptance and furnish a surety bond for $1,000 to accompany the guaranty, if required.” In the building contract it is provided that The “contractor [Pew] will provide all the materials and perform all the work * * * with the following changes—lay 6" salt glazed cellar pipe 350 feet from rear of building and
“Darby, Montana, January 26, 1915.
“On my representation that all bills for material and labor entering into the construction of the bank building which I contracted to build for the State Bank of Darby, Darby, Montana, are paid, said bank has this day paid me the final payment of $1,500 in full for the construction of said building.
“I hereby agree to hold said bank harmless from any costs of any action brought to recover for labor or material that has entered into the building, or the foreclosure of liens on same.
“Furthermore, this final payment is not construed by me to invalidate a certain bond given by me and executed by the Fidelity Deposit Company of Maryland, of Baltimore, on my behalf, guaranteeing to said “State Bank of Darby that the basement of said bank building shall be and remain water-tight until the expiration of the time mentioned in said bond, namely, November 1, 1915.
“Geo. H. Pew. [Seal.] „•
“Signed in presence of Sever Thompson.”
It appears the basement was completed in the fall of 1914, and was dry until about June 1, 1915; that it was not water-tight, and that before the expiration of the guaranty period of one year, i. e., in the month of June, 1915, water came in through the floor, the walls and sides, and water had to be ^pumped out every day or so; it would stand two or three
The appellant Pew, although admitting that the basement was not water-tight, demanded additional pay to place the basement in condition, notwithstanding the provisions of the bond sued upon and the receipt by him executed after completion of the work at the time final payment was made therefor, asserting that the bond was of no binding force. In consequence the respondent, in the spring of 1916, employed Olson & Johnson, of Missoula, Montana, to put the ba’sement in condition, and paid the latter company for the performance of the work and labor the sum of $875.
Appellants contend that the bond made the basis of this action must be construed in connection with the building contract, and that there can be no liability so long as the plans and specifications furnished by respondent were followed. In support of their position they rely upon Watson v. O’Neill, 14 Mont. 197, 35 Pac. 1064, wherein it is held that a bond given in connection with a building contract and conditioned for the furnishing of all labor and material necessary to the completion of the building, as specified and shown on the plans furnished by the architect, being contemporaneous and parts of the same transaction, should be construed with the building contract so that each may explain the other under section 632 of the Code of Civil Procedure, Comp. Stats. 1887 (sec. 7877, Rev. Codes).. This case is easily distinguishable from the one now before us. The former case was upon a bond given for the performance of a building contract, and reference was specifically made in the bond, not only to the building contract, but also to the specifications for the work. They were contemporaneous of execution, and parts of the same transaction, and were therefore properly construed together in order to explain each other (sec. 5031, Rev. Codes). The bond sued upon in that case specified upon its face: “The condition of the above obligation is such that should Frederick Eide begin and
A good consideration is “any benefit conferred or agreed to be conferred upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as" he is at the time of consent lawfully bound to suffer, as an inducement to the promisor.” (Sec. 5001, Rev. Codes. See, also, Emerson-B rantingham Implement Co. v. Anderson, 58 Mont. 617, 194 Pac. 160; White v. Hulls, ante, p. 98, 195 Pac. 850.)
In reaching conclusion in this case, we quote with approval the language used in the text of 9 Corpus Juris, page 36, section 59, as follows: “If only specific parts of any instrument are referred to, only so much of such instrument is incorporated in the bond as it is evident the parties intended to embody or to rely on. But this rule does not apply where the bond does not refer to the other instrument or contract, and they have no necessary relation to, or dependence on, each other.” The language of the bond in the present case is not susceptible of the construction usually placed on bonds given by a building contractor to secure a building contract cited by counsel for appellants. (Bush v. Jones, 144 Fed. 942, 6 L. R. A. (n. s.) 774, 75 C. C. A. 582; Filbert v. Philadelphia, 181 Pa. 530, 37 Atl. 545; MacKnight Flintic Stone Co. v. New York, 160 N. Y. 72, 54 N. E. 661; Penn Bridge Co. v. New Orleans, 222 Fed. 737, 138 C. C. A. 191; Northern Pac. Ry. Co. v. Goss, 203 Fed. 904, 122 C. C. A. 198.)
In the cases cited, the doctrine is laid down that the guaranty extends, not to the sufficiency to produce the desired result, but rather to a complete fulfillment of the plans and
If, as was held in Watson v. O’Neill, supra, it is proper to take into consideration the'situation of the parties at the time of the execution of the instrument, and we apply this rule, we are confronted with the fact that the respondent would not have entered into the contract with the appellant Pew for the construction of the bank building independent of the guaranty by separate bond that the basement under the building would be and remain water-tight. The bond herein involved was executed nearly a month after the building contract had been entered into, and one week later than the bond furnished by the contractor for the complete performance of the building contract. Furthermore, after the basement had been entirely completed, as will be noted, the bond was extended for an additional term. There is .no reference, in the bond covering the water-tight construction of the basement, to the specifications, and the only connection with the building contract by way of recital therein is that it is executed pursuant to guaranty required in the building contract.
In Blyfh-Fargo Co. v. Free, 46 Utah, 233, 148 Pac. 427, the court, in construing a bond given to secure a contract for the construction of a tunnel for drainage and other purposes, used the following language: “Although, generally speaking, both the contract and bond must be construed together, yet, when the bond restricts the right to look to certain portions of the contract only, then only those which are thus selected can be considered. * *■ * If, therefore, we have recourse to the terms of the bond given in this case, it is apparent just what part of the provisions of the contract were intended to be made a part of the bond. It is unreasonable therefore to contend that, although certain portions of the contract were eliminated from the bond, yet we must still consider the whole contract for the purpose of determining the scope of the obligations eon
, “It may be generally stated that a bond may incorporate, by reference expressly made thereto, other contracts, papers, or written instruments, or it may be conditioned for the performance of certain specific agreements set forth in such instruments, so as to embody the same therein as a part of the obligation thereof with all the stipulations, limitations, or restrictions mentioned in the referred to papers, in which ease the bond and the papers referred to should be read together and construed as a whole, although, if only parts of another contract be referred to, only so much of said writing is incorporated as is evident the parties intended to embody or rely upon.” (5 Cyc. 757; see, also, Blyfh-Fargo Co. v. Free, supra.).
A contract will not be held to incorporate stipulations
“The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Sec. 5027, Rev. Codes.) “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” (Sec. 5028.) “The whole of a contract is to be taken together, * * * to give effect to every part, if reasonably practicable, each clause helping * * * the other.” (Sec. 5030.) “A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect if it can be done, without violating the intention of the parties.” (Sec. 5032.) “A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.” (See. 5036.) However broad
Applying these rules of construction to the bond made the basis of this action, it is found that the contractual obligations of the appellants are completé, definite, certain and unambiguous, and they must be held to a compliance with its terms.
“Whatever impulses may control individual action, courts must be governed by law. It is their province to interpret contracts which are open to interpretation, or they may enforce obligations, but it is beyond their power to make agreements for parties, or to alter or amend those which the parties themselves have made.” (Frank v. Butte & Boulder Min. & L. Co., 48 Mont. 83, 135 Pac. 904.) Courts may enforce, but
Even though it be considered that the appellant Pew entered into an unwise contract, or that it imposed a hard burden, in that he assumed and guaranteed that the basement would be water-tight upon specifications prepared by another, yet he had the specifications before him, adopted them as his own, and, since he made' the bargain, he must be held to it. (Emerson-Brantingham Implement Co. v. Anderson, supra,) To so hold is but to compel the principal and surety to do that which they bound themselves to do.
Assignments of error 5-8, inclusive, relate to instructions
Offered instruction D 7 was properly refused by the court. It
The sixth and seventh assignments of error relate to
The evidence was properly admitted as to the measure of damages sustained, but the question of the reasonableness and necessity of the amount expended for putting the basement in water-tight condition is quite another matter, not raised by these assignments of error, and is therefore not considered. Had error been predicated on the insufficiency of the evidence, a different conclusion might have been reached.
For the reasons stated, the judgment and order appealed from are affirmed.
'Affirmed.