Forst v. Leonard , 116 Ala. 82 ( 1896 )

McCLELLAN, J.

If it was error to exclude the proposed testimony of Forst, to the effect that the estimates attached to the deposition of Hilliker were the original estimates paid by the witness to Leonard and Alfred, no injury resulted therefrom to the plaintiff. That these were the original estimates had been shown by the evidence of Iiilliker, who made them, as also by this witness himself in effect, and that the plaintiffs had paid the amounts shown by them had been deposed to by both these witnesses, and not controverted by the defendants. — Ullman v. Myrick, et al., 93 Ala. 532.

The second plea of the sureties alleged in substance that changes from the building contract which they bound themselves that the principals would faithfully .perform were made without their knowledge or consent. The testimony of Gere, it having been shown that changes were made, that he was never asked about any changes, to be made in the building, and of Hall — both sureties — that he never knew, nor was asked to consent to changes in the building, tended to support this plea, upon which the plaintiff took issue. There was, therefore, no error in receiving this testimony.

The general charge was requested.by the plaintiffs on the theory that the fact that they had been forced to pay .to and for Leonard and Alfred for materials and labor in building and completing the house, more than the contract price agreed upon, entitled them to an affirmative instruction. This theory is unsound. If the evidence shows, on the one hand, that the contractors complied with the stipulations of the contract in respect of .materials used, labor supplied, the character of workmanship and the time of completion, except in so far as compliance was prevented or waived by the plaintiffs, and on the other, merely that the plaintiffs had made payments in excess of the contract price for building the house, it would not follow necessarily that plaintiffs could recover on the bond for such excess of costs, for non constat but that it resulted by reason of plaintiffs’ unwarranted interference with the contractors or -waiver of the contract stipulations. The testimony of Leonard and Alfred tended to show that they fully complied with- the contract as to building the house except as prevented by plaintiffs, or in respect of provisions therein waived by plaintiffs ; and on their testimony the jury might have concluded that all the damages laid in the action were referable to acts of the plaintiffs for which the obligors on the bond were not responsible. Hence our conclusion that the general charge was properly refused to the plaintiffs.

The complaint avers that “at the time of the execution and delivery of the bond sued on, the said Leonard and Alfred jointly entered into and executed with the plaintiffs a certain contract in writing for the building of a certain house,” &c., &c. There was apparently much insistence on the trial below that the burden was on plaintiffs under the foregoing averment to prove that the bond and contract were simultaneously signed. The bond recites that whereas Leonard and Alfred “have contracted with Mrs. M. Forst and her husband, A. Forst,” for the building of a one-story frame house, &c., &c.; and upon this much appears to have been said in the court below and is said here to the effect that the bond could only be held to secure a contract existing in its final form — that is, as applied here, written out and executed, when the bond was signed, and evidence was adduced to show that the contract between plaintiffs and Leonard and Alfred had not been reduced to writing when the obligors set their names to the bond. It was made clearly to appear, on the other hand, that the bond was signed with reference to Leonard and Alfred’s undertaking to build a certain house for Mrs. Forst, that they secured the signatures beside their own to it, and kept the paper in their possession until the signing and delivery of the written contract, and thereupon delivered the bond to the obligors therein. Now it is too obvious for discussion that this bond was executed when it was delivered at the time of the execution of the contract, and that the mere signing of it was not its execution as matter of law nor within the averments of the complaint. It is equally clear that the bond, having been signed with reference to a building contract between the Forsts and Leonard and Alfred, and left in the hands of the latter for delivery to the obligees, speaks from the time of delivery, from its execution, and not from its signing ; and that its efficacy is not at all impeached by the fact that it was signed before the contract was reduced to writing. Charge 6 requested by the plaintiffs very correctly states the law in this connection as applied to the evidence in the case, and in view of the position taken by defendants on the trial with reference to this point, there was apparently much necessity for the jury to be thus instructed. The refusal of the charge was error, and we cannot, by- any means, see that plaintiffs were not prejudiced thereby.

If charge 3 given for defendants was supposed to be misleading when applied to the facts of the case, plaintiffs should have asked an explanatory charge.

Reversed and remanded.