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(49 Utah, 453) the surety was liable where the cost of compleBOARD OF EDUCATION OF SALT LAKE tion exceeded the original contract price. CITY v. WRIGHT-OSBORN CO. et al. [Ed. Note. For other cases, see Schools and (JOSEPH NELSON SUPPLY CO., Inter-School Districts, Cent. Dig. §§ 195, 196.] vener). (No. 2930.)

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Under a contract for the construction of a school building authorizing the school board to terminate the contract on certificate of the architects, where two architects who were partners were named, but one of them was a mere silent partner, and the other did all of the work of preparing the plans and specifications and superintending and overseeing the erection of the building, a certificate on which the board terminated the contract was not insufficient be cause it represented the judgment of only the active architect.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 202.]

2. SCHOOLS AND SCHOOL DISTRICTS 85CONSTRUCTION CONTRACTS TERMINATIONNOTICE "AND"-"AT ONCE."

Under a contract for the construction of a school building which provided that, if the contractor should fail to supply sufficient labor or materials, or in the performance of any of the agreements therein, such failure being certified by the architects, the school board should be at liberty after three days' written notice to the contractor to provide any such labor or materials, and deduct the cost from moneys due the contractor, "and" that, if the architects should certify that such action be taken, the board should also be at liberty "at once" to terminate the employment of the contractor and complete the work, the board was entitled, upon the architects certifying that the contract should be terminated, to terminate it immediately without notice, as "at once" meant immediately and without delay, while "and" meant in addition to or something added to what preceded it. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 202.

5. SCHOOLS AND SCHOOL DISTRICTS 81(2)— BUILDING CONTRACTS-CONTRACTOR'S SURETY-LIABILITY.

Assuming that a provision in such contract requiring a bond which should expire two years from the date of the contract controlled the construction of the bond, though not contained therein, the surety was nevertheless liable where the contractor defaulted within two years, though suit was not brought and the an:ount expended by the obligee in completing the work was not ascertained within the two years.

School Districts, Cent. Dig. 88 195, 196.]
[Ed. Note.-For other cases, see Schools and
6. SCHOOLS AND SCHOOL DISTRICTS ~81(2)—
CONTRACTOR'S SURETY-EVIDENCE-ARCHI-

TECT'S CERTIFICATE.

Where a contract for the construction of a school building provided that, if the board completed the work upon the contractor's default, the expense of completing the work should be audited and certified by the architects, and that the decision of the board thereon should be final and conclusive, the architects' audit and certificate was admissible against the contractor's surety in an action on the bond.

[Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196.] 7. APPEAL AND ERROR 1002, 1011(1)—REVIEW CONFLICTING FINDINGS - SEPARATE TRIALS OF ISSUES.

Under a contract for the construction of a school building, the school board terminated the contract and completed the work pursuant to an architect's certificate stating that the contractor had defaulted in certain particulars, and among other matters was installing boilers not in compliance with the specifications. In an action against the surety for the difference between the cost of the work and the contract

price, the party which sold the boilers to the contractor intervened and sought judgment against the surety for the purchase price. The issues between plaintiff and the surety were tried before a jury, which found for plaintiff, and found that the specifications adopted by 152-CONSTRUCTION-MEAN- the architect were those known as specifications

For other definitions, see Words and Phrases, First and Second Series, And; At Once.] 3. CONTRACTS

ING OF LANGUAGE.

All the words used in a contract must, if possible, be given their usual and ordinary meaning and effect; as it will not be assumed that the parties did not intend what their language implies.

No. 1, with which the boilers did not comply. The issue between the intervener and the surety was then tried without a jury, and the court found that specifications No. 2 were those adopted, and that the boilers complied therewith. Held that, while these findings were in direct conflict, as they were based on conflicting evidence, it was the exclusive province of the jury in one case and of the judge in the other to de81(2)-termine the weight of the evidence and the credSUR-ibility of the witnesses, and the Supreme Court could not interfere with the findings, but must treat them as though they constituted the result in two separate and distinct cases.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 732, 733, 738.]

4. SCHOOLS AND SCHOOL DISTRICTS BUILDING CONTRACTS-LIABILITY OF

ETY.

A school board, having terminated a contract for the construction of a school building as authorized by the contract, advertised for bids for the completion of the work, and required contractors to state in their bid a guaranteed maximum cost for completion of the work, and the percentage for which they would perform the work, but provided that payment would be based only on the actual cost of labor and material, and that the contractor's percentage would be based thereon. Held that, assuming that the board was required to advertise for bids to complete the work, and that the original contractor's surety was entitled to insist on this being done, there was nothing in the require ment that bidders include a guaranteed maximum cost preventing competitive bidding, and

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Under the bond of a contractor for the construction of a school building conditioned for the payment of labor and materials, the surety was liable for the purchase price of boilers and other materials sold the contractor for use in the construction of the building and fully complying with all specifications, though the school board in completing the work after the contractor's default removed the boilers and part of

For other cases see same topic ani KEY-NUMBER in all Key-Numbered Digests and Indexes

the other materials and substituted different boilers.

[Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 195, 196.]

Appeal from District Court, Salt Lake County; T. D. Lewis, Judge.

Action by the Board of Education of Salt Lake City against the Wright-Osborn Company and the Fidelity & Deposit Company of Maryland, in which the Joseph Nelson Supply Company intervened. From judgments in favor of plaintiff and the intervener, the Fidelity & Deposit Company appeals. Affirmed.

Stephens & Smith and Dey, Hoppaugh & Fabian, all of Salt Lake City, and Guy Le Roy Stevick, of San Francisco, Cal., for appellant. James Ingebretsen, of Salt Lake City, for respondent Joseph Nelson Supply Co. M. E. Wilson and Walton & Walton, all of Salt Lake City, for respondent Board of Education.

FRICK, C. J. The plaintiff, hereinafter designated respondent, commenced this action against the Wright-Osborn Company as contractor, hereinafter styled contractor, and against the Fidelity & Deposit Company of Maryland, hereinafter called appellant, in the district court of Salt Lake county, to recover on an indemnity bond made and delivered by the appellant to the respondent wherein the former agreed to indemnify the latter for any loss or damage it should sustain in case the contractor failed, neglected, or refused to comply with the provisions and conditions of its contract. The Joseph Nelson Supply Company, hereinafter called intervener, intervened in the action and set up a claim for material sold and delivered to the contractor which it alleged it had delivered to the contractor to be used in the school building being erected by the respondent, and which had not been paid for by the

contractor.'

The respondent alleged that it entered into

a contract with the contractor whereby the latter agreed to furnish all the material and labor necessary to complete a heating and ventilating plant or system in a high school building which respondent was then erecting at Salt Lake City, Utah, that the contractor was required to furnish a bond for the faithful performance of its contract, and that it would promptly pay for all labor and material. The contract is set forth in full as an exhibit and is made a part of the complaint. The terms and conditions of the contract are numerous and specific. It is not necessary, except in one particular, to set forth the many conditions and provisions contained in the contract, since those that are deemed material will be specifically referred to in the course of the opinion. Since the action, however, is more particularly based upon article 13 of the contract, and in view that one of the controlling questions involved on this appeal depends upon the construction of certain provisions contained therein, we quote said article in full. It

"Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being shall be at liberty after three days' written nocertified by the architects, the said second party tice to the contractor or to any of his agents to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and such certificates of the architects, together with the action of the board thereon, shall be final and conclusive; and if the architects shall certify that such action be taken, the said second party shall also be at liberty at once to terminate the employment of the contractor for the said work, and immediately to enter upon the premises and to take possession of all materials thereon, together with all tools, machinery, apparatus, and conveniences, and in case of such discontinuance of the employment of the contractor, he shall not this contract until the said work shall be wholly be entitled to receive any further payment under finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expenses incurred by the said seeshall be paid by the said second party to the ond party in finishing the work, such excess contractor, but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the said second party. The expense incurred by the said second party, as herein provided, either for furnishing materials, or for finishing the work and any damages incurred through such default, together with the value of the use of tools, machinery, materials, and conveniences that may be taken by the said second party, shall be audited and certified by the architects, and the decision of the said second party thereon shall be final and conclusive. And this shall be construed to mean not only the completion of the heating and ventilating system for the buildings, but the removal of all rubbish from the same, as well as from the grounds."

The respondent, after alleging that the contractor had entered into the contract as aforesaid, also further alleged:

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That the appellant had made and delivered to the respondent a certain bond in which appellant had agreed to indemnify the respondent in case said contractor should fail to comply with the conditions of its contract in completing and installing said heating and to comply with the provisions of its contract in ventilating plant; that the contractor had failed the following particulars, namely: That the contractor had "attempted to furnish material of a poor and inferior and improper quality, and not of the quality required by the specifications and contract, and furnished and delivered at said building and attempted to put in place therein inferior and improper boilers cient for the purpose for which they were used, not in accordance with the contract and insuffiand * wholly neglected to supply a sufficiency of properly skilled workmen and failed to prosecute the work with promptness and diligence; that on the 17th day of January, 1913, the architect mentioned and referred to in said building contract, 'Exhibit 1,' certified in writing that said contractor had refused and neglected to supply a sufficiency of properl skilled workmen, and had refused and neglected to supply a sufficiency of material of the proper quality, and had failed to prosecute the work with promptness and diligence, and had failed generally in the performance of the agreements on said contractor's part to be performed, and further certified in writing to the plaintiff that

and diligence, and that the contractor indicates a disposition in the handling of this work that convinces us that said contractor will be unable to carry on the work with that degree of expedition contemplated by the contract; in fact, the contractor indicates so little capacity that it is difficult under all the existing conditions to prophesy a date when said contractor will complete the contract in accord with the plans and specifications.

the employment of the said Wright-Osborn Company in respect of and arising from said contract, and that such action of termination of said employment should be taken by the plaintiff, and thereupon, and on the same day, the said plaintiff did, by resolution, at once terminate the said employment, and thereupon notified each of the defendants of said action;" that the contractor furnished material of inferior quality for hangers for the air ducts and that said hangers were improperly placed; that the "On account of certain labor union difficulties contractor failed "to do skilled workmanship which have arisen between this contractor and in making the joints" in certain pipes and fail- the labor unions of this city, it seems that the ed to "properly ream said pipes"; that said entire work in the building, not only that concontractor wholly failed and refused to proceed templated by the contract with the Wright-Osin the execution and performance of its said born Company, but that required from other contract, so that agreeably to the provisions of contractors working upon said building, will be said contract the further employment of the so delayed and hampered that we are quite dissaid * [contractor] was by plaintiff ter-couraged and cannot come to any other concluminated."

Respondent then alleged that it had completed the work the contractor had agreed to do, specifically stating the cost thereof, and demanded judgment for the amount it had expended in excess of the contract price. A copy of the indemnity bond made and delivered by the appellant was also attached to and made a part of the complaint. The special provisions of the bond that are material to this controversy will be referred to in the course of the opinion. In view that the sufficiency of the architect's certificate is assailed, we append the same in full. It reads as follows:

"We have made an exhaustive investigation of the facts and circumstances relative to the performance of the contract existing between your board and the Wright-Osborn Company, dated July 1, A. D. 1912, and with great particularity have examined into the facts relative to the performance by that company of said contract, and we desire to report and certify as follows:

sion than to say that, if the high school building is to be erected within the time contemplated by your honorable board and by the contracts which your board has entered into, and in accord with the plans and specifications, no other course of action can be followed than for your the said contractor, which employment arises honorable board to terminate the employment of by virtue of that certain contract existing between your board and the Wright-Osborn Company.

"The above statement while not intended to be exclusive, contains the important reasons for the certificate and recommendation which follows, and we believe your honorable board will deem it sufficient to justify said certificate and recommendation.

"We therefore certify that it is necessary for your honorable board to terminate the employment of the said Wright-Osborn Company, which employment arises by reason of that certain contract existing between your board and the said Wright-Osborn Company, said contract bearing date July 1, A. D. 1912, and we certify that said action shall be taken by you, and we recommend that said employment of said WrightOsborn Company existing by reason of said contract shall immediately be terminated."

"That said company acting as said contractor, has failed and neglected to perform said conThe contractor did not answer the comtract in many particulars, some of which fail-plaint nor appear in the action. The appelures and neglects we will particularly refer to. lant filed its answer, in which, after mak"In the first place, the said contractor has brought upon the ground and delivered at the ing specific admissions and denials, it set up building certain galvanized iron for the air various defenses, all of which are sufficiently ducts to be constructed by said contractor in the reflected in the points its counsel have raised building, which galvanized iron is of poor qual- and which are hereinafter discussed. ity and not of the quality required by the specifications furnished by us to the contractor, and we have refused to accept said iron.

"In the second place, the contractor has delivered at the building and is now engaged in putting in place three Kewanee boilers. The boilers tendered by the said contractor are not such as are called for by the specifications, and said boilers are insufficient for the purposes sought to be accomplished by them. After a thorough investigation, we are satisfied that these boilers tendered by said contractor will not sustain a pressure to exceed 110 pounds, and that you will be unable to insure said boilers for a greater pressure than 110 pounds and the boilers required by the specifications call for a pressure of 125 pounds. And then the tubing of the boil ers is 31⁄2 inches in diameter, whereas the specifications call for tubing 4 inches in diameter. And we are reliably informed that the boilers tendered by the contractor are of less value than the boilers called for by the specifications.

The case was tried to a jury, which returned a verdict in favor of the respondent, from which this appeal is prosecuted.

Counsel for appellant in their brief have grouped all of their assignments of error under the following heads: (1) and (2) That the certificate of the architect on which the employment of the contractor was terminated is void; (3) that the employment of the contractor was terminated without notice, and is therefore void; (4) that the appellant. is not liable in this action because the respondent was not legally damaged; (5) that no recovery can be had on the indemnity bond because it ceased to be in force before the cause of action arose; (6) that the respondent was itself in default, and hence could not legally "Furthermore, the contractor has neglected to supply a sufficiency of properly skilled work- enforce a forfeiture against, and therefore men, and from the situation that now exists it terminate, the employment of the contractor; appears that said contractor will be unable (7) that the court erred in restricting the during the continuance of this contract to sup- cross-examination of the architect; (8) that ply a sufficiency of properly skilled workmen, and the said contractor has failed and is still the court erred in permitting respondent to failing to prosecute the work with promptness amend its complaint in certain particulars;

and (9) that the court erred in withdrawing | cumstances, is of little, if any, importance. certain issues from the jury.

Counsel state their first objection to the architect's certificate in the following words: "This suit is brought under the contract; and plaintiff must therefore show the performance of conditions on its part, one of which is the issuance of a valid architects' certificate authorizing termination. The certificate here is void because based upon a finding of fact not submitted to the architect and which he had no authority to decide."

No doubt if the two architects had acted in the matter, then, both upon principle and under the authorities, the contractor would have been entitled to the judgment of both. The architects, in one sense, would then have been arbitrators, and either party would have been entitled to their combined judgment. In this case, however, only one acted; and while the business was done in the name of Eldredge & Chesebro, yet Eldredge was a mere silent partner, and Chesebro did all that was done in the matter precisely as though Eld

We have read the evidence and the charge of the court with care. We cannot perceive in what respect the architect failed to com-redge was not nominally connected with the ply with the provisions of the contract in making the certificate. True, counsel argue that the architect did not act upon his own judgment, and, further, that he did not act in good faith in making the certificate. The court submitted those questions to the jury, and in doing so adopted some of the requests offered by appellant's counsel. The contention that the architect based his judgment on matters outside of the contract was also fully covered by the court's charge to the jury. The court charged the jury that, if they should find that the architect's certificate was based on facts, or on alleged defaults outside of the contract, their finding must be in favor of the appellant. The jury found against appellant's contention on that issue, and there certainly is sufficient evidence to sustain such a finding.

business. In view that Eldredge knew nothing about the matters, his judgment could have been of no aid to any one, and in view that Chesebro acted alone, and was, as the record discloses, by all regarded as the sole architect on the building, his act must be deemed as the act of the architects named in the contract. Any other view would merely enforce the letter and entirely ignore the essence of the provisions of the contract cover|ing the powers and duties of the architects.

The same is true with respect to the contention that the architect did not act in good faith in making the certificate. That issue was also fully covered by the court's charge, and the jury also found against that contention.

The first point raised by counsel must therefore fail.

In making this contention counsel seem somewhat inconsistent. They strenuously insist that the architect in making the certificate must act only upon personal observation and knowledge. If that contention be sound, how can they consistently contend that Eldredge, who had absolutely no knowledge respecting the matters contained in the certificate, should participate therein? For him to have done so would have been the same as though a stranger had been called in to act. That certainly is not what is contemplated by the provisions of the contract.

This objection must therefore likewise fail. [2] The third point raised by counsel, in our judgment, presents the serious question on this appeal. By referring to article 13 of the contract, which we have set forth in full, it will be seen that, if the contractor shall fail, refuse, or neglect to do the things therein enumerated and such failure, refusal, or neglect

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"being certified by the architects, the said sec-
ond party [respondent] shall be at liberty, after
three days' written notice to the contractor,
to provide any such labor or materials,
and to deduct the cost thereof from any money
then due or thereafter to become due to the con-
tractor under this contract; and such cer-
tificate of the architects, together with the ac
tion of the board thereon, shall be final and
that such action be taken, the said second par-
conclusive; and if the architects shall certify
ty shall also be at liberty at once to terminate
the employment of the contractor,
immediately enter upon the premises," etc.
(Italics ours.)

[1] We fail to perceive any merit to counsel's second point. The objection to the certificate is that it reflects the judgment of only one of the named architects, and is, for that reason void. No doubt, under certain circumstances the objection might not only be of force, but it might be fatal to the certificate. The undisputed evidence is to the effect, however, that in preparing all of the plans and specifications upon which the high school building was constructed, including the contract in question, James L. Chesebro acted alone, that Eldredge was a mere nominal partner, that is, a silent partner, so to speak, and at no time took any part in any of the matters pertaining to the making of the plans and specifications for the high school building or in superintending or overseeing the erection thereof, and that Chesebro acted alone in that regard. Indeed, it was Appellant's counsel vigorously insist that, in shown that Elaredge did not know any- view that in this case the employment was thing whatever respecting the matters pertain- terminated upon the certificate of the arcniing to the execution of the contract in ques-tect without giving three days' notice to the tion. Counsel's contention, therefore, that contractor, therefore the termination was void the contractor was entitled to the judgment of and of no effect. In support of the contenboth architects named in passing upon wheth- tion counsel, among other cases, cite McCleler the provisions of the contract were being lan v. McLemore (Tex. Civ. App.) 70 S. W. disregarded or not, under the facts and cir- 224; George A. Fuller & Co. v. Doyle (C. C.)

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and

87 Fed. 687; American, etc., Co. v. Butler, tend what their language implies. Again, if 165 Cal. 497, 133 Pac. 280, Ann. Cas. 1916C, it be true that it was the intention of the 44; and Connell v. Higgins, 170 Cal. 541, 150 parties that three days' notice be required bePac. 769. It is not necessary to refer to the fore the employment under the contract in other cases cited by counsel upon that point, question can be terminated under all circumsince they really have no application. In- stances, then it is equally true that the pardeed, all of the foregoing cases, except the one ties did not use apt words to express that infrom Texas, were disposed of on other tention or to convey their meaning. While it grounds. While it is true that in all of the is true that the owner is required to give cases cited the questions arose out of con- three days' notice before he can supply the tracts containing provisions similar to the one defects in the material, etc., it is, however, in question here, and while in the course of also true that if the architect shall certify that the opinions the provisions in the contracts "such action be taken," that is, if the archiproviding for notice and the termination of tect shall certify that the employment be terthe employment of the contractor are either minated, then the owner may do that "at discussed or referred to, yet the provisions of once," that is, forthwith. Why say "at the contracts in question in those cases were once" if three days' notice is required? In not only different from the provisions of the view of the subject-matter, "at once" can only contract in question here, but the decisions mean what the term implies, namely, immewere based on other grounds. In the Texas diately and without delay. If the three case, however, the court directly passed upon days' notice must precede the termination of the provision with regard to the termination the employment under the circumstances, of the employment, and held that the employ- then it was wholly unnecessary to use the ment of the contractor could not legally be term "at once," since after the three days terminated without giving the three days' had elapsed the owner, upon the receipt of notice provided for in the contract. The pro- the architect's certificate to that effect, could visions of the contract respecting the giving terminate the employment without further deof notice passed on by the Texas court, in lay, and hence without further notice of any our judgment, was, however, materially dif- kind. Moreover, the word "and" in the proferent from the provisions upon that subject vision in the contract in question is also of in the contract in question here. In the Tex- peculiar significance. It is there used in the as contract it was provided that in case the sense of "in addition to," "something added contractor shall fail, refuse, or neglect to to what precedes it." In addition to the provide the labor or material, etc.right given the owner, after giving the three days' notice, to supply the things enumerated therein it is given an additional right, namely, at once to terminate the employment of the contractor if the architects shall certify that such be done. That is just what the parties stipulated might be done, and, having done so, courts have no alternative save to enforce the terms of the contract. While it is quite true that an argument could also be presented in favor of the contention made by counsel for the appellant, yet in making that argument something must always be inter

"such refusal, neglect, or failure being certified by the architect the owner shall be at liberty, after three days' notice to the contractor, to provide any of such labor or materials and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or fail ure is sufficient ground for such action the owner shall also be at liberty to terminate the employment of the contractor," etc. (Italics ours.) Notwithstanding that the foregoing language, to our minds, is much more favorable to counsel's contention, the Texas Court of Civil Appeals expressed some doubt with re-polated into the contract that is not found gard to whether the three days' notice is required or not in case the contract is terminated upon broader grounds. The provision in the contract here which gave the respondent the right to terminate the employment reads quite differently from the provision in the Texas case. After providing that after giving three days' notice to the contractor respecting the latter's failure to comply with the provisions of the contract there enumerated the owner may supply the defects and recover all -costs thereof from the contractor, the contract further provides:

"And if the architects shall certify that such action be taken, the said second party shall also be at liberty at once to terminate the employment of the contractor," etc.

therein either in express or by necessary implication, and under such a construction it is impossible to give all of the words used in the contract their usual and ordinary meaning and effect. Moreover, the certificate of the architect in this case covers defects which, it would seem, no amount of notice could have obviated or cured, and that such conditions might arise must necessarily have been contemplated by the parties, and that such is the case is clearly indicated in the contract. True, as counsel contend, there are also matters stated in the certificate for

which a termination of the employment was not provided for in the contract, but that question was thoroughly gone over at the trial, and the matters in that regard were [3] It is a cardinal rule of construction all properly submitted to the jury, and were that all the words used by the parties must, found in favor of respondent. While we have if possible, be given their usual and ordinary arrived at the foregoing conclusions with meaning and effect. It will not be assumed some hesitation, yet we are firmly of the opinthat the parties to the contract did not in-ion that this objection cannot prevail.

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