McGregor & Henger v. Escajeda , 1919 Tex. App. LEXIS 1134 ( 1919 )

HIGGINS, J.

Appellants had contracted to erect a building for the Young Women’s Christian Association in the city of El Paso.-By written contract dated August 20, 1917,. appellants subcontracted a part of the work to S. C. Maesé. The material portions of this contract pertinent to this appeal are as follow's :

Maese agreed to furnish all labor and lay the brick and hollow clay tile in the building.

“Section 4. The contractor agrees to pay the subcontractor for the performance of his work the following prices:

“Pace brick, $13.00 per thousand brick laid in the wall.

“Common brick $7.00 per thousand brick laid1 in the wall.

“8” hollow tile, 4 cents per square foot of wall. ■

“3" hollow tile, 3 cents per square foot of wall.

“Settlement to be based on the actual quantities of brick and tile laid as evidenced by the invoices to the contractor. * * *

“Section 6. Payments: Contractor agrees to provide funds to meet subcontractors payroll each week. Pinal payment of the remainder to be made within thirty days after acceptance of the work by the architect, and the furnishing of evidence that there are no claims of any kind against him by the subcontractor.

“Section 7. Immediately after signing subcontractor agrees to furnish bond in the sum' of $900.00 guaranteeing the faithful execution and completion of this contract.”

Maese gave bond as required by section 7 of the contract with J. A. liscajeda and Prank Alderete, appellees, as sureties. This bond recited that Maese had entered into the aforesaid contracts with appellants, a copy of which was attached, and was conditioned that Maese should faithfully perform, execute, and carry out his contract according to its terms, covenants, and conditions and in accordance with the agreements therein contained.

Maese furnished all labor and set in place the brick and tile work in-the building, and, under the schedule of prices set forth in the fourth section of the contract, the compensation due him for his work was $1,665.33. Maese’s pay rolls, as presented by him, for •his laborers employed in doing the work, amounted to $2,088.20. Appellants provided funds 'each week to meet the pay rolls for laborers employed on the; work, and in the aggregate thus paid the sum of $2,088.20, which exceeded the amount rightly due Maese by $432.87. The pay rolls were checked up by appellants’ foreman. This suit was brought .by appellants against Escajeda and Alderete to recover said sum of $432.87. Mease was not joined in the suit, it being alleged that he was notoriously insolvent and his whereabouts unknown.

From an adverse judgment McGregor & Henger appeal.

Opinion.

[1, 2] Upon the facts stated it appears that Maese has fully performed the service which he undertook to do in his subcontract. He has discharged every obligation which he therein expressly assumed. In like manner appellants did what they agreed to do. The payments to meet the weekly pay rolls of Maese were made in accordance with the contract. The first and main rule in construing contracts is that the intention of the parties as expressed in the words used must control. And it is well settled that the liability of a surety is not to be extended by implication beyond the terms of his contract.

[3] The manifest intention of the parties to the bond was to guaranty the faithful execution and completion of the service and obligations assumed by Maese in the contract of August 20, 1917. This is shown upon the face of tha bond as well as by the seventh section of the subcontract. A copy of the subcontract being attached to the bond and reference thereto made,, it may properly be considered in ascertaining the intention of the parties and in determining the liability assumed by the sureties. Of course, Maese is legally bound to repay to appellants the over-payments which they have made to him; but there is no express provision therefor in the subcontract or the bond. His obligation to make such repayment thus arises upon an implied contract. Since Maese has performed the service which he undertook to perform and has discharged every obligation which he expressly assumed, we are of the opinion that the condition of the bond was thereby fulfilled and the liability of the sureties ceased. To hold the sureties liable upon the present demand would impose a liability which neither they nor Maese had expressly assumed. It would impose a suretyship liability upon an implied and collateral contract of the principal, Maese. It would by implication extend their liability beyond the terms of their contr&et. This is not permissible. The proper judgment was rendered.

Affirmed.

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