176 Iowa 267 | Iowa | 1916
The plaintiff entered into a contract, July 22, 1912, with J. H. Armstrong, under the terms of which the latter undertook to construct a dwelling house, furnishing labor and material, for the consideration of $1,509.70, to be paid as the work proceeded. The house was to be finished on or before October 30, 1912. Armstrong furnished a bond in the sum of $1,500 with the defendant as surety, conditioned:
“That if the principal shall fully comply with all the terms of -the contract, then this obligation shall be void; otherwise it shall remain in full force. The obligee, the principal, and the surety hereby expressly agree, in modification of the foregoing obligation and condition, as follows: (1) Upon the discovery by the obligee, or by the obligee’s agent or employee, of any act or omission on the part of the principal, . . . that shall or might involve a loss hereunder, the obligee shall give immediate written notice thereof with the fullest information obtainable at the time to the surety at its home office. . . . (7) If an extension of time shall be given to the principal by*269 the obligee, or if the terms of the contract shall be altered or varied by any agreement between the principal and the obligee1, this bond shall be void, unless the consent of the surety to such extension, alteration, or variation, shall be secured and setfofth in an endorsement attached hereto and signed by the president, a vice-president, or one of the secretaries of the surety.”
The plaintiff paid at different times $940, the last on October 11,1912. Armstrong continued in1 charge thereafter until the house was completed; but plaintiff employed men to work-under his direction, as permitted by the contract, to whom he paid $253.37, leaving a balance of $334.33 owing on the contract in his hands. A mechanics’ lien for lumber furnished' by Canfield Lumber Company, amounting to $210 and $1 cost was filed, December 12, 1912, and a mechanics’ lien for. material and work amounting to $392.93 and $1 cost was filed by the Cedar Rapids Sash and Door Company, January 4, 1913. The plaintiff paid these liens, and in this action seeks to recover the amounts so paid, less said balance mentioned. The surety company denied liability, for that: (1) Without the consent of the surety of the bond, the plaintiff extended the time for completion of the house; and (2) plaintiff discovered an act or omission of the contractor which might involve a loss on the contract, and failed to notify the surety on the bond thereof, as required under the terms of said bond.
"Contract time expired Oct. 30, extended same Nov. 30. About 88 per cent of work now completed.”
As a witness, plaintiff was asked what he meant by the first part of the answer, and, over objection that the language was plain and unambiguous, answered:
*270 • .“We thought when we wrote that letter that Mr. Armstrong wouldn’t finish the house, so we naturally extended the contract in that letter. I don’t know of any extension of time. ’ ’
The liberty of explaining a private writing as a letter in the nature of an admission does not depend on whether it was plain and unambiguous.or not. That may be the occasion for such explanation when stated. The ruling is approved.
“The burden of proof is on the defendant to- establish by a preponderaneé of the evidence that the plaintiff granted an extension of time under his contract with Armstrong, the contractor. Mere forbearing to proceed against Armstrong because he had not completed the building at the time specified in the contract would not in itself amount to such an extension of time as is contemplated in the bond or contract sued on, and the burden is on the defendant to establish its claim as to release by reason of plaintiff’s alleged failure to comply (with the terms of said bond or contract.”
This, in connection with the statement of the issues, sufficiently advised the jury of the consequence of a finding that the contract had been extended.
“If at any time there shall be evidence of any lien or claim for which, if established, the owner of the said premises might become liable, and which is chargeable to the contractor, the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim. Should there prove to be any such claim after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor’s default.”
The failure to pay bills at that time, then, was not in violation of his contract. For all that appears, no bills were then due. All that can be inferred is that he was not paying his bills as plaintiff thought he ought to. There was no show;ing that the money paid by plaintiff had not been applied on material and labor in the construction of the house, and we are of opinion that the evidence of any omission on his part was too indefinite to have warranted a jury in finding that it might involve loss under the bond. There was, then, no error in not submitting the issue to the jury.