Park v. Brunswick-Balke-Collender Co.

*213 Fellows, J. (after stating the facts). Appellee' in its brief seeks to raise some questions touching the validity of the liens. These liens were sustained in the decree entered in the court below and appellee has not appealed. The rule is too well established to need citation of authorities that one who has not appealed can not here ask for a reversal of the decree. We pass the minor questions raised by appellant, as we are satisfied its principal contention must be sustained. The appellee agreed to pay the contractor Boyle $8,-000 for a completed building. There was no provision for any payment as the work progressed. There was nothing due the contractor until the building was completed. It was a condition of the bond that the obligee should retain in its hands that portion of the contract price it might retain. There is no *214 testimony proving or tending to prove that any of the money paid Boyle was used to pay materialmen or laborers. The payment was made without requiring of the contractor the affidavit provided for in section 14799, 3 Comp. Laws 1915. The payment of the $6,000 was a voluntary payment pure and simple and the instant case cannot be distinguished from- the case Sandusky Grain Co. v. Condensed Milk Co., 214 Mich. 306. In that case we fully reviewed the authorities, many of which were by analogy applicable to that case and directly applicable to this case and held that voluntary payments made by the owner to the contractor which did not reach the materialmen or laborers released the surety, at least pro tanto, and inasmuch as such voluntary payments exceeded the amount of the bond the surety was completely released. We must so hold here. We need not go over the ground again. See Fidelity & Casualty Co. v. Livingston, 234 Mich. 375, and authorities there cited. But counsel for appellee says the bond in question is a materialmen’s and laborers’ bond and the surety is a guarantor, and cites 21 R. C. L. p. 1015, to sustain his contention that the rule announced in the Grain Company Case is not applicable to such a bond. By italicizing a few words in the quotation relied upon it will be seen that it is entirely inapplicable to the present case. The quotation relied upon by counsel is as follows: “Moreover, where a bond provides not merely for the performance of the contract, but also for the payment, of materialmen and laborers, their rights cannot be affected by violations of the contract by the owner, and as to them the surety is not released by the owner’s violation of a provision in the contract for retained percentages.” Standard Asphalt, etc., Co. v. Texas Building Co., 99 Kan. 567 (162 Pac. 299, L. R. A. 1917C, 490), is *215 cited. The bond in that case was given to secure materialmen and laborers under the provisions of section 7006, General Statutes of Kansas, 1909, and the suit was brought upon it by a materialman. It was expressly pointed out that a suit might be maintained by a materialman for whose benefit it was given irrespective of whether one could be maintained upon it by the railroad company, and it was said: “Besides, the controversy here is between those who furnished labor and material and the guaranty company, upon a statutory bond expressly given for the protection of laborers and materialmen, and upon which they are authorized to sue regardless of what action may be taken by the obligee in the bond. Gen. Stat. 1909, §§ 7006, 7007. The bond serves the double purpose of securing the performance of the contract and the payment of claims for labor and material employed in the work. Laborers and materialmen have rights under this statutory bond independent of the obligee. The bond is required by the legislature for the benefit of laborers and those who furnish material for railroad construction, and no agreement between the railway company and the contractor or between him and the guaranty company can affect the rights of laborers and materialmen to recover upon the bond given for their protection. Modifications of the contract, or failures to observe some of its provisions, which might be good defenses as between the guaranty company and the obligee in the bond, will not relieve the guaranty company from liability upon the bond to laborers and materialmen. * * * Whatever defenses the guaranty company might have in an action between itself and the railway company, none of the defenses advanced by it are available as against the plaintiff for the labor and material furnished by it on the faith of the bond given for the protection of those furnishing labor and material in the railroad construction.” And the same court in Young Men’s Christian Ass’n v. Ritter, 90 Kan. 382 (133 Pac. 894, L. R. A. 1915C, 170), a case cited and quoted from by us in the Grain *216 Company Case, where the action was brought by the owner upon the bond, held precisely as we held in the Grain Company Case, and as we are holding in this case, that as between obligee and surety voluntary payments by the obligee discharge the surety pro tanto. That Ruling Case Law did not go to the length contended for by counsel is made plain by turning back a page, where we find the following: “It is a general principle that any material alteration in a building contract will release nonconsenting sureties on a bond given to guarantee the faithful performance of the contract, and to protect the owner against any claims or liens for labor or materials used in the construction of the building. Whether a payment made by the owner before it has become due, or in an amount larger than provided for in the contract, is such a material alteration of the contract as to release the sureties is a question on which the decisions do not agree; but the weight of authority seems to be that such payments will release the sureties.” 21 R. C. L. p. 1013. United States Fidelity & Guaranty Co. v. American Blower Co., 41 Ind. App. 620 (84 N. E. 555), also relied upon by appellee was likewise an action by a materialman on a bond given for its benefit. The contract involved the installation of a heating and ventilating plant in a schoolhouse, upon which no lien could attach, and like reasoning was indulged in as is found in the Standard Asphalt Case. Turning to the provisions of the bond in the instant case, it will be noted that it was expressly stipulated that it was one of suretyship and that no right of action should accrue upon it except to the obligee nor should any such right of action be assigned without written consent of the surety. But a further answer to appellee’s contention, and a complete one, is that no materialman or laborer is here seeking recovery on this bond. None of the lienors in their bills ask for such relief or claim any *217 benefit under the bond. It is the appellee who seeks to shoulder the loss occasioned by its own act upon the surety company. This it may not do. The decree will be modified in accordance with this opinion, and, as so modified, will be affirmed. Appellant and the lienors will recover costs. Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred.