14 Mont. 197 | Mont. | 1894
It appears that respondents, who were defendants in this action, executed and delivered to plaintiff, as sureties, an instrument as follows:
“Know all men by these presents, that Jos. O’Neill and Jacob Switzer, of the city of Helena, county of Lewis and ■Clarke, state of Montana, are held and firmly bound unto John R. Watson, of the city of Helena, county of Lewis and Clarke, state of Montana, in the sum of one thousand dollars, lawful money of the United States of America, to be paid to the said John R. Watson, his executors, administrators, or assigns, for which payment well and truly to be made we bind ourselves, heirs, executors, and administrators unto John R. Watson firmly by these presents. Sealed with our seals, and dated this third day of August, one thousand eight hundred and ninety-two; The condition of the above obligation is such that, should Frederick Eide begin and complete the brickwork on John R. Watson’s business block, as follows: Frederick Eide is to furnish all the material, lime, sand, brick, and all labor necessary to the erection and completion of John R. Watson’s business block, on Main St., as specified and shown on the plans as furnished by W. E. Norris, architect—then the above obligation to be void; otherwise to remain in full force and virtue. Frederick Eide. [seal]
“Jos. O’Neill. [seal]
“J. Switzer.” [seal]
This action was brought against said sureties on said bond to recover from them the sum of five hundred and forty-eight dollars and eighty-four cents damages, alleged to have been sustained by plaintiff through the failure of defendant Eide to furnish certain material and labor necessary to, and which were
Answer was made by defendant sureties, Switzer and O’Neill, denying all the allegations of the complaint, and trial ensued, whereat, upon the close of the introduction of evidence on behalf of the plaintiff, respondents moved the trial court for judgment of nonsuit as to respondents O’Neill and Switzer, on the ground that the evidence does not prove, or tend to prove, any liability on the part of said sureties, which motion was sustained by the court, and judgment for nonsuit entered accordingly, from which judgment plaintiff prosecutes this appeal.
It appears from the case shown by the record that the motion for nonsuit was sustained upon the ground that no sufficient showing was made to warrant the court in reforming the bond in the respect sought by plaintiff, without consideration as to whether, upon the whole case made out, plaintiff was entitled to the recovery of damages sought to be recovered upon the bond, as executed, without reference to reformation. The bond as executed is pleaded, together with all the facts, relating to the failure of the contractor, Eide, in constructing said building and furnishing the material and labor therefor, as provided by the plans of the architect, referred to in said bond, and the payment thereon, which involved the damage sued for. And, although the plaintiff sought a reformation of said bond to secure the extension of the terms thereof to include the building contract, as well as the plans and specifications,
We are of the opinion that the whole question of reformation of said bond was unnecessarily brought into said action. That the terms of the bond, as executed, and providing that the sureties guaranty in the sum of one thousand dollars, to the effect that said Frederick Eide, the contractor and builder, should “begin and complete the brickwork on John E. Watson’s business block, as follows: Frederick Eide is to furnish all the material, lime, sand, brick, and all labor necessary to the erection and completion of John E. Watson’s business block, on Maiu street, as specified and shown on the plans as furnished by W. E. Norris, architect,” were sufficient to sustain this action for the recovery of the sum of money which the plaintiff may have been compelled to pay out towards the furnishing of the material and labor necessary for the erection and completion of the structure according to said plans, as alleged in the complaint, without any reformation or extension of the terms of said bond.
We think this action involves the construction and application of said instrument to the subject thereof, rather than the question of the reformation of the instrument. In construing and applying the instrument to the subject to which it relates, the court was entitled to receive evidence of the “circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, . . . , so that the judge be placed in the position of those whose
It is evident from the record that the plans and specifications of the building, the contract for the erection and completion thereof, and the bond sued on are all contemporaneous, and parts of the same transaction—in fact, parts of the res gestee— and, as such, should be construed together, in order to explain each other, and determine the rights, obligations, and liabilities of the parties thereto.
For the .reasons stated above, the judgment appealed from should be reversed, and it is so ordered.
Reversed.