Highway Iron Products Co. v. Phillips

Thompson, J. This is an action by appellant against appellees as principals and sureties on a contractor’s bond. Upon the trial there was a special finding of facts by the court and conclusions of law stated thereon, to which conclusions of law appellant excepted. Based upon the conclusions of law stated, the appellant was given judgment against appellees March and Williams, principals on said bond, but was denied any relief against the appellees who were sureties thereon, from which judgment this appeal has been prosecuted. The only question which we need consider is as to the correctness of the second and fourth conclusions of law stated by the court and which were as follows: , (2) “That by reason of the change made in the contract, the surety on the bond was released, and that the plaintiff take nothing by this action as against the defendants Ellis S. Rees, John C. Shank and William C. Phillips, the surety on the bond.” (4) “That defendants Ellis S. Rees, John C. Shank and William C. Phillips recover their costs.” We have carefully considered the finding of facts, and fail to observe any finding that there was a change in the contract. Although no cross-error is assigned by either of the appellees, both parties concede in their briefs that there was error in the amount of the judgment rendered against March and Williams. No error was assigned as to conclusions of law Nos. 1 and 8. Judgment is reversed, with instruction to grant a new trial.