15 Or. 631 | Or. | 1888
This is an action to recover damages for a breach of a-building contract, signed by J. J. Goble, as principal, and D. Coffman and Thomas Nye, as sureties. It appears from the complaint that on the fourteenth day of June, 1886, the plaintiffs entered into a contract with J. J. Goble, who agreed to furnish all of the materials except brick, and perform all the work and labor in the erection of a certain building in Pendleton, Oregon, for which the plaintiffs were to pay $6,460, to be paid in various amounts as the work progressed. To secure the faithful performance of said contract on the part of said Goble, the agreement sued on was executed. Raid agreement contains, amongst
Judgment appears to have been taken against Nye for want of an answer. Goble and Coffman demurred to the complaint, but their demurrer being overruled, they filed separate answers. Coffman’s denial controverts the alleged breaches. Goble’s goes further, and in addition to controverting the breaches alleged in the complaint, it alleges the making of the agreement, that he . kept and performed the same on his part, in every particular, and that the building was duly accepted by the plaintiffs. The answer contains the further allegation that plaintiffs have neglected and omitted to pay said defendants $2,088.23 of the contract price for erecting said building. .The reply denied the new matter in the answer. A trial before a jury in the court below resulted in a verdict and judgment in favor of the plaintiffs, from which this appeal is taken. >
1. The error principally relied upon by the appellants is that no breach of the conditions or covenants by the defendants is shown. That to constitute such breach, for which Coffman, a surety, can be held liable, it must be made to appear that claims existed for labor and materials used in the erection of said building ; that Goble neglected to pay such claims; and that such fcteps were thereupon taken under the statute as to perfect said liens against such building. That as against the defendant Coff-man particularly, if the plaintiffs paid any claims until all of this had been done, such payments were voluntary on the part of the plaintiffs, and that such facts would not constitute a breach of said contract. The case most relied upon by the appellant to sustain T.' contention is Simonson v. Thori, 31 N. W. Rep. 861. In that cao'? the agreement provided that the contractors “would protect said Grant, and save him harmless from all claims and liens for labor and materials contracted by them on said buildings The contract under consideration required' more than ihR, hv its terms the contractor was bound to “promptly pay, or cause to be paid, for all materials used by him under this contract, and all labor and mechanical workmanship performed and executed in the construction and completion ” of said building. The part of said writing which refers to the accrual of liens, and the saving of the party of the “ second part harmless against any such claims or liens,” refers entirely to what was agreed to be inserted in the additional agreement, but which was never executed. The agreement sued on is, undoubtedly, broader in its terms, and more comprehensive in its scope and meaning than the additional agreement which is provided for therein; and
2; Parties to contract. Counsel for the appellant insisted! upon the argument here that the contract set up in the complaint failed to show any liability on the part of the defendant Coffman; that he was in no sense a party to it; that it purported to be a contract between Goble on the one hand and Thompson and Flack on the other; and that it was of such a nature that Coff-man could not become a party either as principal or surety by merely signing his name. It is true that the contract does not name Coffman or Nye as parties. They simply signed their names to the writing after Goble’s, which writing does not otherwise appear to be their contract; and their signatures are followed by the names of the other parties mentioned in said agreement. This objection presents the simple question, whether or not such signing made them parties to the agreement, and we are of the opinion it did. In Thomas v. Gumaer, 7 Wend. 43, it was held that where an agreement between two persons, perfect in all respects as between them as the sole contracting parties, was signed by them and a third person, who added the words “ as security ” to his name, and in the agreement was contained a clause “ we bind ourselves,” etc., it was held that the third person, being the second signer, was the surety of the first signer, and was jointly bound with him to.perform the stipulation of the contract. So in
3. It is alleged in the complaint that Coffman and Nye signed said writing as sureties for Goble. Within the rule announced in Thomas v. Gumaer, supra, the place where they placed their signatures would fix their relations to the parties; but without that, and where the capacity in which parties sign an agreement does not otherwise appear, it may be alleged, and proven by parol. (Brandt on Suretyship, § 17.) This construction is more favorable to the surety ordinarily than to treat him as a principal, for the reason that in many cases, such as the modification of the ^agreement with his principal without his consent, laches, and the like, he may be entitled to his discharge; but in this case no such conditions are shown to exist, and the liability of the surety is coextensive with that of the principal, under the terms'of the agreement described in the complaint.
4. There are some other assignments of error in the notice of appeal, but they were not specially insisted upon at the argument, and they do not seem to be of such importance as to require special discussion. We have examined them, however, and do not find that any of them can be sustained.
The judgment of the court below must therefore be affirmed.