63 P. 833 | Cal. | 1901
This action was tried before the court, findings filed, and judgment entered for plaintiff. Appellant Ganahl has appealed from the judgment on the judgment-roll. The only question necessary to be determined is as to whether the findings entitled the plaintiff to judgment against appellant. It appears from the findings that plaintiff's assignor entered into a written contract with defendant Parsons, under the terms of which Parsons agreed to build a dwelling-house for said assignor upon the premise described in the complaint for the sum of two thousand three hundred and forty-four dollars to be paid in certain installments. The contract provided that in case the said Parsons should fail to prosecute the work with diligence, or in the performance of his agreement in any respect, the owner (plaintiff's assignor) shall be at liberty to terminate the employment, enter upon the premises and complete the building. It further provided that in case of the failure of Parsons to complete the building according to the contract, the owner should have the right to employ any other person or persons to finish the work and provide the materials therefor, and contained the following clause: "The expense incurred by the owner as hereinbefore provided, either for furnishing materials or finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose *518 certificate thereof shall be conclusive between the parties." At the time of the execution of the contract the contractor executed and delivered to the owner his bond in the sum of eight hundred dollars, with appellant as one of the sureties thereon, conditioned that the contractor should faithfully perform all the terms and conditions of the contract and complete the building according to the plans and specifications, and when completed deliver the same up to the owner free from all liens. After the commencement of said building, and the payment of various amounts, the contractor, without any just cause, refused to complete the building and abandoned the contract. The owner thereupon took posession, employed men, purchased materials, completed the building, and necessarily expended in its completion, according to the plans and specifications, the sum of five hundred and thirteen dollars and thirty-three cents, over and above the contract price, for which sum plaintiff recovered judgment. The court found that the architects "never did audit and certify to the costs and expenses for materials and labor for the completion of said building by said Mary A. Tally and that said architects never did audit or certify to any or all of the expenses for the completion of said building. . . . . That said architects were never called upon or asked by said Mary A. Tally, or by any other person, to audit and certify, or audit or certify, to the expenses for material and labor for the completion of said building."
The court further found that, immediately after the abandonment of the contract by Parsons the owner discharged the architects on the ground that they were careless, dishonest, and incompetent and never afterward employed them.
Appellant was surety for the faithful performance of the contract by Parsons. He was bound only by the express terms of his contract, and to the extent, and in the manner, and under the circumstances, pointed out in his bond and the building contract to which it referred and no further. He was entitled to stand on its precise terms. (Pierce v. Whiting,
In Smith v. Briggs, 3 Denio, 73, the defendant had covenanted with the plaintiff for doing the carpenter work of certain houses and to pay him when he should receive from the architect his certificate that the work was fully and completely finished according to the specification annexed to the contract. It was held that giving the certificate by the architect was a condition precedent, the performance of which must be averred in an action brought to recover payment for such work.
In Smith v. Brady,
This court has held that where a contract provides for the payment of such sum as may be determined by arbitrators, that the submission to arbitrators and procuring an award is a condition precedent to recovery. (Holmes v. Richet,
It follows that the judgment should be reversed.
Haynes, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed. McFarland, J., Temple, J., Henshaw, J.