Busch v. Hart

Riddick, J., (after stating the facts). The decision of this case turns on the question whether the contract sued on was in writing or not. The appellant, Busch, claimed that the contract was in writing, and attached to the bond at the time it was executed. Hart denied this, and based his right to recover on the contention that the work was done under an oral contract in terms different from the written contract set up by Busch. The verdict of the jury in favor of Hart was no doubt based on the finding that the work was done under an oral contract, and that the contract exhibited by Busch was not attached to the bond at the time of its execution, and not the contract between the parties. The bond expressly refers to the fact that Hart and Busch had entered into a contract for the performance of which the bond was given, and contains the following recitals, to-wit: “a copy of which contract is attached hereto, and made a part hereof.” At the trial the contract was exhibited by Busch attached to the bond, and, referring to the time when the bond and contract were delivered to him by Hart, he testified that “the copy of the contract was attached to the bond just as it is now.” Now, if the contract exhibited by Busch was in fact attached to the bond at the time of its execution, and was the contract referred to therein, then a signing of the bond was in legal effect a signing of the contract also. Tonnele v. Hall, 4 N. Y. 144; Gale v. Nixon, 6 Cow. (N. Y.), 448; Mayer v. Adrian, 77 N. C. 88; Fisher v. Kuhn, 54 Miss. 483; 2 Whart. Ev., sec. 872. The testimony of both Busch and Hamblin tends strongly to show that the contract exhibited by Busch was attached to the bond at the time of its execution. This is further supported by the reference in the bond to a contract attached thereto. We can find nothing in the record to contradict or impeach this testimony. It is true that Hart testifies that his contract with Busch was not reduced to writing, but he nowhere states that the contract exhibited by Busch was not attached to the bond at the time of its execution. On the contrary, when cross-examined on this point, he stated that “the form of a contract attached to the bond shown him might have been attached when he delivered the bond, but that he had never signed it.” It appears from his testimony that his contention that the contract was not in writing was based on the fact that he had never signed the contract itself; but this, we have seen, was a matter of no consequence if he signed the bond with the contract attached, and delivered it to Busch in this condition. He does not deny that the contract exhibited with the bond was attached to it at the time he executed the bond, but only denies that he signed such contract. His assertion that this writing was not the contract is only a legal conclusion he draws from the fact that it was not signed, and is entitled to no weight as evidence. After carefully considering the transcript, we are forced to the conclusion that the undisputed testimony shows that the contract exhibited with and attached to the bond at the trial was thus attached at the time the bond was delivered to Busch by Hart. This contract having been attached to the bond at the time of its execution, and expressly referred to therein as the contract for the performance of which the bond was given, the parties are bound by its stipulations. writing! The fact that the consideration to be paid Hart is not stated'in the bond can make no difference now, for the contract has been executed. This is not a case in which the statute of fraud applies, nor has it been pleaded. When that statute does not apply, a contract to furnish materials and perform work may be in writing, and the price to be paid for the same may be established by parol, when it does not contradict or vary the contract. 1 Greenleaf, Ev. 284a, 285; Eighmie v. Taylor, 98 N. Y. 294; Graffam v. Pierce, 143 Mass. 386; Clifford v. Turrill, 9 Jur. 633. There is no dispute here about the consideration to be paid, and the only dispute is about matters- fully covered by the written contract attached to the bond. The court correctly instructed the jury as to the legal effect of signing the bond with the contract attached, but the finding and verdict of the jury is without evidence to support it for the amount found against appellant. The judgment is reversed, and the cause remanded for a new trial. Hughes, J., dissents.