Hayden v. Cook.

"Know all men by these presents, that we, J. A. Cook, principal, and John Green, sureties, are held and firmly bound unto J. A. Hayden in the sum of one thousand dollars, for which payment, well and truly to be made, we do bind and obligate ourselves, our heirs, executors, administrators, or assigns, each and every of them, firmly by these presents. Sealed with our seals this May 12, A. D. 1888.

"Whereas J. A. Cook has contracted with J. A. Hayden to execute, construct, and complete a frame story-anda-half cottage for the sum of eighteen hundred and thirtyseven dollars, by a contract dated May 12, A. D. 1888, hereto annexed: Now, the condition of this obligation is, that if the said J. A. Cook shall duly perform and keep his agreements as in said contract set forth, and shall pay for all material and work in and about said building, so that the same shall not be liable to any mechanics' or other liens, and shall at all times protect said J. A. Hayden against any and all liens on said work and material, then this obligation is to be void, but if otherwise, the same shall be and remain in full force and virtue.

The contract price for the building was $1,837. Cook was to furnish all labor and materials. The plaintiff claims damages in the sum of $500 by reason of the failure and refusal of Cook to pay for all the materials used and labor performed in the construction of the building mentioned in said bond, in consequence of which mechanics' liens were filed against said building.

The defendant Cook is now a non-resident of the state, and was not served with a summons, nor did he appear in the action.

Hayden v. Cook.

The defendant Green answered, alleging, in substance, that Hayden and Cook never executed a written contract for the erection of the building, but entered into a verbal contract for the construction of a dwelling which cost a much larger sum than was contemplated by the proposed written agreement, for which the bond was given; that he never agreed to allow said bond to stand as security for said verbal contract, nor for the construction of the building which was erected by Cook.

The answer denies that any mechanics' liens were filed against plaintiff's building, or that plaintiff has been compelled to pay out the sum mentioned in the petition, or any other sum, in consequence of the failure of Cook to keep and perform his covenants. The answer further avers that "said plaintiff never notified him that he would look to him (this defendant) to make good any loss on account of the contract of said Cook, or that he relied, or expected to rely, upon any obligation made by this defendant, or the said Cook was failing in any manner to comply with his agreement, or that he was failing to furnish any pay for the materials according to his agreement, or that he had failed to pay persons to whom he was indebted for work or materials on account of said contract with said plaintiff, or that liens were filed or to be filed against said premises; but, on the contrary, the said plaintiff paid out moneys to the said Cook when he knew that it was before the time provided by the statute at which said claims for materials became due and collectible, contrary to his duty in that regard, and thereby reduced the funds in plaintiff's hands that would otherwise have been abundant to have paid off and satisfied all liens against said premises."

All allegations of the answer were denied by the reply. At the close of plaintiff's testimony the defendant Green moved for a nonsuit, on the ground of the insufficiency of the evidence, which was granted, and the suit was dismissed at the costs of the plaintiff. If, under the evidence

Hayden v. Cook.

adduced by the plaintiff, he was not entitled to recover anything, the judgment of nonsuit was proper. We will notice the grounds urged by counsel for defendant in error why the ruling should be sustained.

The first contention is that there is no proof that a written contract for the erection of the building was ever entered into between Cook, the contractor, and Hayden, the owner of the building. The evidence shows that a contract for the erection of the building mentioned in the bond was prepared according to the direction and understanding of the parties, which contract bears date May 12, 1888. For some cause, doubtless an oversight, neither Cook nor Hayden signed it. It does, however, appear that the bond on which the suit was brought was written upon the back of said contract. It will be observed that the bond recites that Cook has contracted with Hayden to construct a frame story-and-a-half cottage for a specified sum, according to a contract dated May 12, 1888. One of the conditions in the bond is that Cook "shall duly perform and keep his agreements as in said contract set forth." The defendant in error iş estopped by these recitals to deny the execution of the contract. The rule is as well settled as anything in the law that sureties are estopped to deny the facts recited in their obligations; in other words, they cannot set up and prove facts to contradict their own bonds. (Brandt on Suretyship & Guaranty, secs. 29, 30; Gudtner v. Kilpatrick, 14 Neb., 347; Adams v. Thompson, 18 Id., 541; Love v. Rockwell, 1 Wis., 331; U. S. v. Bradley, 10 Peters [U. S.], 365; People v. Hoson, 20 Pac. Rep. [Cal.], 369; Rogers v. U. S., 32 Fed. Rep., 890; Collins v. Mitchell, 5 Fla., 364; Green v. Wardwell, 17 Ill., 278; Shaw et al. v. Havekluft et al., 21 Id., 127; Otto v. Jackson, 35 Id., 349.) The same principle was recognized and applied in the case of Gudtner v. Kilpatrick, cited above. That was a suit upon an appeal undertaking. The defense was that no appeal was taken, nor could be, for the reason that the same was prohibited

Hayden v. Cook.

by law. This court held that the defendants were estopped to deny that an appeal had been taken in contradiction of the recital in their undertaking. To the same effect is the case of Adams v. Thompson, supra.

Otto v. Jackson, supra, is analogous to the case at bar. That was an action upon a guaranty of the faithful performance by tenants of the covenants of their lease. On the trial objection was made to the introduction of the lease in evidence, for the reason that the execution by one of the lessees was not proven. It was held that the guarantors were estopped by their guaranty from denying the execution of the lease. So in this case, we think, Green is estopped to deny that the contract, upon the back of which the bond was written, was neither executed by, nor was it the contract of Cook and Hayden. The bond in express terms refers to and recognizes such instrument as being the contract under which the building was to be constructed, and its terms and conditions are as binding upon the obligors of the bond as though the same were set out at length in the body of the bond.

It is insisted that the surety is released from the obligation of his bond because the terms of the building contract relating to time and manner of making payments were not observed, and for the further reason that certain changes, alterations, and additions were made in the building, during its construction, not called for by the contract, nor plans and specifications, which form a part thereof. The third article of the building contract provides that "should the said party of the second part, at any time during the progress of the said work, require any alterations of, deviations from, additions to, or omissions in the said work, he shall have the right and power to make such change or changes, and the same shall in no way injuriously affect or make void the contract; but the difference, for work omitted, shall be deducted from the amount of the contract by a fair and reasonable valuation; and for additional work required in

Hayden v. Cook.

alterations, the amount shall be agreed upon before commencing additions, as provided and hereinafter set forth in Article No. 6, and such agreement shall state also the extension of time, if any, which is to be granted by reason thereof."

It fully appears from the testimony that, during the progress of the work, some changes and additions in the building were made which increased the cost thereof, although not to a considerable extent, while other changes were made without additional expense. But all the alterations and additions which were made are fully provided for and covered by the clause of the contract above quoted, and the making of them did not have the effect to release and discharge the defendant in error from his obligation as surety. (Dorsey v. McGee, 30 Neb., 657.)

contract.

After the bond was given Cook constructed a barn for Hayden, but the proofs show that it was erected under a contract separate and distinct from the one for the erection of the dwelling. It is not sought to make the defendant in error responsible for the faithful performance of the barn It is obvious that neither the entering into of such contract, nor the erection of the barn thereunder, in any manner affected the liability of Green on his bond for the damages sustained by the plaintiff by reason of the failure of Cook to carry out the terms of the contract for the erection of the dwelling.

We will next consider the question of payments. The contract provided that payments were to be made on weekly estimates of the architect for labor furnished, less ten per cent, and for all materials as soon as vouchers were obtained from subcontractors or parties who furnish materials. The balance was to be paid at the expiration of ten days after the completion of the work.

The testimony in the bill of exceptions shows that, after the completion of the job, liens were filed against the building for labor and materials used in the construction of the