234 S.W. 878 | Tex. Comm'n App. | 1921
This suit was instituted by defendants in error to recover of plaintiffs in error, L. B. Wright and H. K. Porter, as sureties, upon a contractor’s bond for materials furnished the contractors. Recovery was also asked against R. D. Benson, owner, and L. R. Hensley and G. L. Phillips, contractors.
In his pleadings, Benson asked judgment over against the sureties for any such sum as might be recovered against him, for reasonable attorneys fees and for $445 liquidated damages for delay.
The terms of the building agreement between the contractors and the owner provided in. substance that in consideration of the sum of $8,750, the contractors were to furnish material and labor for and to erect and complete by September 1, 1917, a V/¿story frame residence, a 2-story frame garage, and other work, in accordance , with the plans, specifications; and drawings of the architects.
Plaintiffs in error deny liability upon the ground that the contract actually entered into was different from the one presented to them in connection with the execution of the bond in this, the contract representing the final views of the party contained the follow
“April 28, 1917.
“I further agree to begin work on the garage not later than Monday, April 30th, and to push same forward to completion or to have same so as it can be used as a place of residence in two weeks from above date. Also to construct the stable as promptly as possible. In connection with the shingles for garage, if it becomes necessary to size these shingles to dimension, you are to pay for the cost of sizing same, and the loss, if any, caused by such work.
“Yours very truly, L. It. Hensley.
“G. L. Phillips.
“It is hereby agreed and understood that the price for all tile work was estimated at $0.50 per sq. ft. Should this tile cost more or less thap $0.50 per sq. ft. addition to or reduction from the contract price will be so made.
“G. L.”
The jury found that this letter was made a part of the contract between the owner and contractor without the knowledge or consent of the sureties after the bond was signed by them, and that they refused, after having learned of the letter, to have anything to do with the contract.
The tidal court rendered judgment against plaintiffs in error and G. L. Phillips in favor of the various materialmen for the respective amounts found to be due by the jury, and also rendered judgment in favor of the owner against the sureties and contractor for $30 delay, which amount was credited upon the amount which the owner admitted he owed under the contract. A. M. Plensley having previously been adjudged a bankrupt, judgment was rendered that the parties take nothing, as against him.
This section of the Commission in making its recommendations to the Supreme Court in the case of Williams v. Baldwin concluded that the provision of the statute heretofore referred to was unconstitutional as an interference with the right of freedom to contract. The judgment recommended was adopted by the Supreme Court. 228 S. W. 554. As that case turned upon the constitutionality of that .provision of the act, the adoption of the judgment recommended by the commission is indicative that the Supreme Court approved the holding of the Commission that the provision referred to is unconstitutional.
If the letter of April 28 embodies terms variant from those contained in the contract presented to the sureties in connection with the execution of the bond, so as to make of it a new contract, such change or alteration cannot be justified in virtue of the unconstitutional provision of the statute, but the rights and liabilities of the parties are to be tested by the terms of the contract independent of the statute.
Plaintiffs in error assailed the constitutionality of the statute requiring the owner to take a bond, and in oral argument before us urged that the bond became void and of no effect when the statute was subsequently declared unconstitutional. It is unnecessary in view of the position we take to decide that question. The bond i^ not such an agreement as is prohibited by law, and it is by no means certain that it was taken in deference to the statute requiring the owner to take a bond from the contractor. It is not in the statutory amount and does not incorporate therein some of the material provisions of the statute. We will assume therefore, for the purposes of the disposition of the case, but without deciding the point, that it is a voluntary, as distinguished from an involuntary,’ or statutory bond.
“It is fundamental that any agreement or dealings between the creditor and the principal in an obligation or debt, which essentially varies the terms of the contract, without the consent of the surety, will release the surety from liability. The contract of the surety being voluntary, usually without the expectation of profit or gain, the law regards his liability as strictissimi juris, and-demands that he be dealt with in the utmost fairness and good faith. He cannot, therefore, either at law or in equity, be bound further or otherwise than he is by the very terms of his contract, and if the parties to the original contract think proper to change the terms of it without his consent (which, it is not disputed, they have a right to do), he is discharged. When his contract is changed without his knowledge or authority, it becomes a new contract and is invalid, because it is deficient in the essential element of consent.”
In another important feature does it vary the original undertaking, and that is as to the consideration. The agreed consideration of the original contract is in the certain and fixed amount of $8,750. The effect of the stipulation — to add to or substract from the contract price according.as the cost of tile per square foot might demand — is to change the fixed and certain maximum liability to an uncertain and indefinite liability. The sureties were not parties to these changes, and did not consent thereto or acquiesce therein, and hence are not liable under the new contract nor responsible under the original because it ceased upon the substitution of the new contract to exist. Clark and Herring v. Cummings, 84 Tex. 610, 19 S. W. 798.
Defendants in error rely upon the holding of the Commission in Williams v. Baldwin, supra, as authority for their contention that, though the sureties may, as between themselves and the owner be discharged, as between themselves and the materialmen for whose benefit the bond was taken, they are not released. Obviously that holding is not authority for holding the sureties liable in this case. In that case there was a contract to which the sureties fully assented. The terms of its provisions were violated by the owner after the contract had been taken for the benefit of materialmen and acted upon by them, while in this case the contract presented to the sureties in connection with the execution of the bond never became a contract between the parties who were to execute it.
We recommend, therefore, that the judgments of the Court of Civil Appeals and district court in favor of defendants in error against plaintiff in error be reversed, and that judgment be rendered, discharging plaintiffs in error from all liability upon the bond, and that otherwise the judgments of those courts be affirmed.
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