Bell v. Paul. be retained by Mr. Paul and was not to be paid over by him until after the building was completed, and was then payable only in the event that there were no liens filed for labor performed or materials furnished. The provision of the contract relating to the retention of the fifteen per cent was intended as a protection of both Mr. Paul and the sureties upon the bond. It constituted a fund in the hands. of Mr. Paul, with which to pay off and discharge any liens that might be filed against the building, and the sureties had a right to insist that the fund thus created should be retained, and that payments should be made according to the contract. The failure of the defendant in error to retain the fifteen per cent released the sureties. (Bragg v. Shain, 49 Cal., 131; St. Mary's College v. Meagher, 11 S. W. Rep. [Ky.], 609.) It is insisted that the stipulation of the contract relating to payments on estimates has reference only to payments made to the contractors. Granted; but how does that affect the defendant in error? Numerous payments were made without estimates, on orders given by the contractors on Mr. Paul. The payment of these orders by the drawee was, in effect, a payment to the contractors. Nor is it material that the orders were given and paid after it is claimed the work was abandoned by Norling & Reynolds; that they had violated the contract did not justify the other party to disregard the provisions written therein on his part to be performed. A party who seeks to enforce a contract must not, himself, have been guilty of a breach thereof. Objections are made to several paragraphs of the charge of the court, but one of which we will notice, and that relates to the tenth instruction, which reads as follows: "If, under the testimony adduced upon the trial and the instructions above given you, you shall find for the plaintiff, you will assess as his damages such amount as the testimony shows he was obliged to and did expend in the Bell v. Paul. payment and discharge of obligations which had been incurred by the contractors for work performed and materials furnished for the erection of the building and which were actually applied to that purpose, and for which the persons performing the work or furnishing the materials would be entitled to a lien upon the building for such amounts, and which had not been paid by the contractors. But in no event can you return a greater amount in your verdict than the penalty of the bond, to-wit, $1,200, with interest on such amount at the rate of seven per cent per annum from the commencement of this action." This instruction is clearly erroneous, in that it fails to state the true rule of damages. By it the jury were told to allow the plaintiff the amounts paid in liquidation of claims for labor performed and materials furnished under the contract for the construction of the building, instead of limiting the recovery to the amount paid in settlement of liens against the property. The extent of the obligation of the sureties was that the contractors should complete the building and turn over the same to the owners "free from liens for labor or materials furnished through Norling & Reynolds." Further than this, they did not undertake or promise. It is admitted that only one lien was filed against the building, which was on a claim for $358.80, for brick furnished by one Thomas Murry, yet the judgment was for $1,296.50, the full penalty of the bond, with interest. It is quite immaterial that the amount paid by Mr. Paul was justly due for labor performed and materials supplied in the construction of the building. As liens therefor had not been filed, the payment was entirely voluntary. Plaintiffs in error did not obligate themselves that the contractors should pay for all labor and materials, only that the building should be delivered to the owner free from all liens. Sureties are not bound beyond the terms of their engage ments. Consaul v. Sheldon. For the reasons stated, the judgment is reversed and the cause remanded for further proceedings. REVERSED AND REMANDED. THE other judges concur. 52-1104 JACOB V. CONSAUL ET AL. V. FRANK L. SHELDON. [FILED SEPTEMBER 21, 1892.] 1. Proceeding in Error: JOINT Judgment: DEFECT OF PAR- 3. Proof of Admitted Facts: HARMLESS ERROR. The admis- Introduction of Evidence: ORDER DISCRETIONARY. The order in which a party shall introduce his testimony rests in the discretion of the presiding judge. 5. Building Contract: MEASURE OF DAMAGES FOR BREACH. Where a building is not erected within the time limited by the building contract through the default or neglect of the contractor, the owner is entitled to recover his damages thereby sustained. In such case it is not error for the owner to prove that the building had been leased for a stipulated sum and that the tenant was to take possession as soon as the work was completed, when it is shown that the reasonable rental value exceeded the amount of rent reserved by the lease. 6. Credibility of Witness: How TESTED. It is competent to show on cross-examination of a witness that he is hostile or 35 247 36 111 35 247 39 668 35 247 42 785 43 888 35 247 44 589 35 247 45 281 35 247 f51 330 53 292 54 462 54 800 35 217 57 477 35 247 159 300 59 451 35 247 60 363 60 796 7. Consaul v. Sheldon, unfriendly towards one of the parties, and if he deny such fact, it is proper to contradict him by proving his declarations or statements made out of court. Such evidence, to be admissible, must tend to show that the witness entertains such hostility at the time of the trial. : DISCRETION OF TRIAL COURT. The extent to which a witness may be cross-examined for the purpose of show. ing his bias is within the discretion of the trial court, and unless there has been an abuse of discretion the judgment will not be reversed. 8. Excluded Testimony: ADMITTING CURES ERROR. Where offered testimony is excluded, the error, if any, is cured by the subsequent admission of the same evidence. 9. Building Contract: SURETIES ON BOND. A building contract contained a provision to the effect that the owner, during the progress of the work, might make changes or alterations in the plans of the building, and that the making thereof should not avoid the contract. In an action upon the contractor's bond it was held that the making of reasonable changes, which did not materially increase the costs of the building beyond the contract price, will not release the sureties. 10. 11. : A surety cannot urge the default of his princi pal as a ground for discharge from his obligation. : CHANGE IN PLANS. When the plans and specifications for a building are changed after the contract is signed, without the knowledge or consent of either of the parties, the same will not vitiate the contract. 12. Instructions. Held, That there is no reversible error in the charge of the court, and that the instructions requested, which were not given, were properly refused. ERROR to the district court for Lancaster county. Tried below before CHAPMAN, J. Charles O. Whedon, for plaintiffs in error. Pound & Burr, contra. NORVAL, J. Jacob V. Consaul, a contractor and builder, entered into two contracts with the defendant in error for the construc Consaul v. Sheldon. tion of two buildings. For the faithful performance of said contracts Consaul entered into two bonds, in the sum of $5,000 each, with Palmer Way, Charles C. Munson, and Zehrung & Henkle as sureties. The action is on these bonds. There was a verdict in the lower court in favor of Sheldon for $3,000, and a joint judgment was rendered thereon against all the defendants below for the amount found by the jury. The plaintiffs in error excepted, and brought the proceedings here for review upon numerous assignments of error. The cause was submitted to this court on March 18, 1891, by written stipulation of the parties, upon printed briefs filed on the merits. Subsequently the defendant in error filed a motion to dismiss the petition in error for the want of proper parties. Before passing to the errors assigned, we will consider the question raised by the motion to dismiss. It is insisted that Elmer E. Henkle was not made a party to the proceedings in error, and that he has not made any appearance in this court. While his name is given in the title of the cause in the petition in error as one of the plaintiffs in error, it fully appears from the body of the pleading that Munson, Way, Zehrung, and Consaul alone are seeking a reversal of the judgment. The affidavit of Mr. Henkle, filed in support of the motion, discloses that the proceedings in error were instituted and carried on without his knowledge or consent; that he never author ized any person to appear for him in this court, and never consented to be a party plaintiff or defendant, but that his name was inadvertently inserted in the petition in error. Mr. Henkle, being one of the defendants in the joint judgment sought to be reversed by these proceedings, should have been made a party, either as plaintiff or defendant. It has been held, and we think rightly, that when all parties to a joint judgment have not been made parties to the proceedings in error brought to reverse such judgment the |