Whelan v. McCullough , 4 App. D.C. 58 ( 1894 )

Mr. Chief Justice Alvey

delivered the opinion of the Court:

There are two questions only that are required to be considered:

1st. Whether the specifications offered to be read in evidence should have been admitted;

2d. Whether the equity proceedings and decree thereon,' coupled with the fact that the amounts of the decree and cost of suits, had been paid by the plaintiff, were admissible in evidence as against the defendant, the surety in the bond.

1. In respect to the first of these questions, we think the specifications, under the circumstances stated by the witness, should have been admitted in evidence.

In the paper designated as the agreement or contract, and signed by the plaintiff only, it is stated that Whelan, the plaintiff, had “ awarded to Walter the erection (according to the plans he had submitted to Walter,) of his two three-story and cellar stores and dwellings, to be located on High street, &c., on the following terms and conditions hereinafter specified.” The plaintiff agreed to pay for the erection of the buildings the sum of $6,633.54, that being the amount of Walter’s bid, and which sum was to be paid in certain instalments as the work on the buildings progressed. But this paper itself contains no specifications as to the dimensions of the buildings, or of what materials they were to be constructed — whether of wood, brick or stone — or how to be finished. There is a separate paper, however, designated “specifications,” containing detailed specifications of all parts and particulars of the buildings, to be used in the construction thereof, and which were used, according to the testimony of the plaintiff.

It is in this paper, and in this paper only, that it is agreed on the part of the contractor, that he “ is to furnish and provide at his own proper cost and expense, as specified, all materials of every kind and description that are necessary to erect and fully finish and complete said buildings in their several parts respectively, except when otherwise specified ; and do all the work in its several parts as specified, to the satisfaction of the owner, according to the true intent and meaning of the said plans and specifications. The materials all are to be the best quality of their several kinds, as specified; and the work is to be done in the best and most workmanlike manner, and finished complete throughout, on or before the — day of-next.” This clause is one of the most essential parts of the contract, and for the execution of which the bond was most needed as security to the plaintiff.

It is a well settled principle in the law of evidence that parol evidence may be received in aid of written evidence, in order either to establish a particular document, or to apply it to its proper subject matter, or to explain it if its terms be of doubtful import; or to rebut some presumption which affects it. Light is generally thrown upon these questions by proof of the circumstances surrounding the parties, and with reference to which the written document was made. Here the testimony of the plaintiff is to the effect, that the specifications set out in the record were made by an architect before the contract and bond were executed, to be used in the construction of the buildings ; that Walter, the contractor, had these specifications in his possession at the time he bid for and was awarded the contract for the buildings, and that the buildings were erected according to the drawings and specifications so furnished him. Indeed, the paper designated as the contract would be wholly unintelligible without the drawings and specifications so used by the contractor. It is clear, we think, these latter pertain to and form a part of the contract of the parties, and must be read and considered together with the paper designated as the contract, as forming the contract within the meaning and contemplation of the condition of the bond. The specifications are but the particulars or details of the plan, and the term plan, used in the contract, fairly embraced the specifications for the buildings.

2. With respect to the second question, the law would seem to be well settled. The bond upon which the suit is brought is conditioned, as we have seen, that Walter, the principal, should well and truly keep and perform each and all of the covenants and agreements in the contract for building the houses. This obligation was not kept and performed, as Walter neither finished the houses, nor paid for work and materials furnished to him for the erection of the buildings, as he was bound to do. His failure to keep and perform the terms and requirements of the contract fixed an obligation both upon him and his surety, to the extent of the damnification sustained by the plaintiff, by reason of such failure. The decree, declaring the liens upon the property of the plaintiff, and requiring payment of the amounts thereof, was a judicial ascertainment of the extent of the damnification sustained by the plaintiff, by reason of the default of Walter, the principal in the bond. The defendant, McCullough, was in fact a party to that suit, and being interested as surety in the bond, in resisting a recovery against his principal or for which his principal was liable, it was his duty to make all proper defenses to the claims sought to be enforced. Where a party has had a full and fair opportunity afforded him of making all the defenses at his command to an asserted right or claim, he cannot afterwards object to the recovery, upon the ground that he was not technically called upon to make such defense. Parr & Cockey v. State, use of Cockey, 71 Md. 220, 234, 235 : And even though the defendant had not been a party to the equity suit, the decree against or fixing the liability of the principal in the bond, would bind, and be admissible evidence against the defendant, the surety in the bond. The judgment or decree of a court of competent jurisdiction that binds and concludes the principal, will bind and be admissible as evidence against the surety of such principal. In the case of Stovall v. Banks, 10 Wall. 583, it was held by the Supreme Court of the United States, that a recovery by a decree against an administrator, the principal in the bond, of a certain amount of money, was binding and conclusive against the surety as well as the principal, and that the surety would not be allowed to attack the decree collaterally. The surety may, of course, be allowed to show, if he can, that the subject-matter of the judgment or decree against the principal was not within the scope or operation of the contract of suretyship, or that there had been collusion or fraud in obtaining the judgment or decree. But if the claims recovered against the principal, or for which he is bound, as in this case, are such as are embraced in the contract of suretyship, in the absence of fraud or collusion, the surety is equally bound as the principal. We are of opinion, therefore, that the equity proceedings and decree thereon offered to be read in evidence, should have been admitted.

It follows that the judgment below must be reversed, and the cause be remanded for a new trial.

Judgment reversed, and cause remanded.