Wehr v. German Evangelical Lutheran Saint Matthew's Congregation

Alvey, J., delivered the opinion of the Court. When the case of Heise & Company, and others, against the present appellees was before this Court at the October Term, 1875, reported in 44 Md., we declined passing upon the question, then discussed by counsel, as to whether the sureties in the bond of Siegman & Jones, the contractors, were discharged by reason of the facts there alleged ; those facts depending as they did upon a conflict of evidence. We declined deciding the question, supposing it to he more appropriate that the conflicting evidence should be passed upon by a jury; and there was also the further reason, that all the parties obligated by the bond were not then before the Court. As no definitive order or decree could then be passed against the bond, to bind all the parties thereto, we deemed it proper to remit the whole question of the liability of the bond to a Court of law. That question has been properly raised by an action on the bond, and has been decided adversely to the defendants, the present appellants, and from that decision they have taken this appeal. The case was tried in the Court below before the Judge, acting in the double capacity of Court and jury. Each party, at the close of the evidence, tendered certain legal propositions, which they prayed to be affirmed by the Court and- taken as rules for its decision upon the facts that might be found. The Court filed in the case a written opinion, which appears in the record, and in which are discussed both law and fact; and in the conclusion the several propositions offered by the parties are ruled upon — 189 — by tbe Court. There is but one exception presented, and that was taken by the appellants to the rejection of their propositions and the granting of those on the part of the appellees, and to the rulings of the Court in its opinion. This, of course, does not embrace the rulings or findings of the Court as to matters of fact. All the facts stated as found, and upon which the verdict is based, must be taken as conclusively established, and therefore not open to review in this Court. Whether the finding of facts by the Court be general or special, such finding has the same effect as a verdict of a jury rendered in the particular form; and this Court has no more power over the facts in the one case than in the other. It is only the propositions of law, ruled upon by the Court below, that can be reviewed here, when properly presented. The bond sued on recites that Siegman & Jones, by their contract of the same date of the bond, had contracted with the appellees to erect and complete a church, according to the plans and specifications, and upon the terms and conditions mentioned in the said contract; and the condition of the bond is, that the contractors should well and faithfully fulfil said contract, and in all respects perform and keep all and singular the stipulations on their part to be done and performed under the same. The breaches assigned are, that the contractors failed to erect, finish and complete the building and works in the time, with the materials, and in the manner provided for by the contract, or according to the plans and specifications in the contract referred to ; and further, that the contractors did not find, provide and deliver at their own cost and charge, free from all claims, liens, and charges whatsoever, all the work and materials necessary and proper for the complete execution of the building, as they were bound to do by their contract. The sureties resist recovery on the bond, and take the defence that they have been discharged, by reason of cer — 190 — tain additions and alterations in the work, not warranted by the original contract. And the additions and alterations supposed to have this effect were, 1st, the extension of the length of the building 3-J feet; 2nd, the change in the foundation of the building- from a brick to a stone wall, with additional- excavations; 3rd, the placing of moveable pews in the basement of the church ; 4th, the furnishing and placing of ventilators, and some slight change about the pulpit and the chancel; and it is objected, 5th, that the specifications or supplemental contracts for the additional work were not executed in manner required by the original contract; and 6th, that there was no time extended for doing the additional work. These matters were all made subjects of legal propositions submitted to the Court by the appellants, but which were refused. With respect to the general principle relied on by the appellants, there'is really no question. All the difficulty consists in its application to the particular facts of this case. It is perfectly well settled that a surety has the right to' stand upon the very terms of his contract; and if such contract be altered or varied in any material point without his consent, so as to constitute a new agreement varying substantially from the original, he is no longer bound. Mayhew vs. Boyd, 5 Md., 102; Miller vs. Stewart, 9 Wheat., 680 ; Whitcher vs. Hall, 5 B. & Cr., 269 ; Bonar vs. Macdonald, 3 H. L. Cas., 226, 239. And any subsequent addition to, or deviation from the contract, is such an alteration as will discharge the surety. But if, by the terms of the original contract, additions to or alterations in the work are provided for, or left to the judgment and discretjon of the other contracting party, either without limit or within certain limits, then the variation, if within the limits prescribed, is allowed by the contract itself, and the surety cannot complain of a variation which — 191 — he has agreed to by the original contract. Stewart vs. McKean, 10 Exch., 675. And whether the present case falls .within the principle there stated, depends upon the terms and construction of the original contract, and the nature and extent of the changes in, and additions to, the plan and finish of the work as originally contemplated. The original contract referred to in the bond, provided, among other things, that the contractors should find, provide and delivery at their own cost and charge, free from all claim, liens and charges whatsoever, all and every kind of material, and work and labor which might “ be necessary and proper for the complete execution of the building, and erect, build, finish and complete, in a good and perfect manner, (to the entire satisfaction of the architects,) the buildings and works, agreeably and conformably, in all and every respect, to the specifications, drawings, dimensions, and explanations which may become necessary, according to the true intent and meaning of the drawings, and specifications.” It is further provided, that if it should appear that any of the work intended to be done, was not fully explained and detailed in the specifications and drawings, the contractors should apply to the architects for such further detailed explanations, and perform their orders as part of the contract. Then follow these important provisions : — “And it is distinctly understood and hereby agreed, that should the building committee appointed by said congregation desire to make any change from the drawings or specifications at any time during the progress of the works, the same shall be carried out by said Siegman & Jones without making void or in any manner affecting this contract. “Such changes, whether in addition to or deduction from the original works, shall be specified in writing, signed by the contractors, the architects, and the building committee. The sum to be paid or allowed for. such — 192 — changes or alterations to be fixed and allowed by the architects, and specified in the writing aforesaid. The decision of the architect in this, and in all other matters, and in cases of dispute, shall be final and binding on all parties.” In another paragraph, it is stipulated that the work should be commenced immediately after signing the contract, and that the basement portion of the building should be completed and delivered up to the appellees on or before the 1st of July then next, and that the entire building should be completed and delivered up on or before the 1st of November then next, under penalty of $25 per day for every day the work should be delayed beyond the time specified; “and this condition not to be made void by any alterations, or additional works being performed, but, in such case, the time shall be extended as shall be deemed proper by the architects, and specified in the written agreement for the additional works; and an additional month be allowed in reference to the completion of basement and entire building, in case piling is necessary.” The contract containing these provisions was executed on the 22nd of January, 1812, by the contractors, and by the appellees by their building committee, consisting at that time of twelve members. We fully concur with the Court below in its construction of the contract. We think it clear that the additions and alterations were all within the contemplation of those provisions of the original contract to which we have referred. The power to make additions and alterations, as we have seen, was plainly reserved, and was of the most comprehensive nature; and to say that the additions and alterations that were actually made were not within the reservation, would be placing such a restriction upon the terms of the contract, as is neither justified by any rational rule of construction, nor consistent with the manifest design of the parties. As is well observed by — 193 — the learned Judge of the Superior Court, the subject of the contract was the building of a church, — an undertaking of considerable importance, and in regard to which the committee had not only their own view’s to consult, but the views and wishes of a large congregation. “In the general experience with reference to building, even in the more moderate matter of a private dwelling, it is well knowm, that the modifications of plans as the work is developed is of the commonest occurrence; and one of the dangers of such modifications is the avoiding of contracts, where there is no express provision made therefor. It is wise, therefore, that such a contingency should be foreseen and provided for, by suitable conditions in the contract; and such seems to have been done here.” It is no argument against the construction adopted, that there is great difficulty in fixing a limit within which additions and alterations might be made. That argument, if of any force at all, goes to the denial of the right to make any additions or alterations whatever; — a proposition utterly inconsistent with the terms of the contract. And then, as to the manner of executing the specifications or supplemental contracts, in regard to the additions and alterations, we think they were substantially in compliance with the original contract. Those in regard to the extension of the building, and the change in tbe foundation, were signed by the contractors, the architects, and eight persons as a building committee. The price to be allowed for the work was fixed in both; and, as we must suppose, by the judgment and approval of the architects. But it is contended, that inasmuch as the original contract was signed by a building committee consisting of twelve persons, the contractors and their sureties had a right to expect that the committee would continue to be composed of the same number; and that, as the supplemental contracts or specifications were signed by only eight of such committee, instead of twelve, such supple — 194 — mental contracts or specifications were not duly executed ; that, assuming the committee to consist of twelve, no number less than the whole were competent to act. But, in answer to this objection, it is sufficient to say, that there is nothing in the contract requiring the committee to consist of any particular number, and there is nothing in the ■record to show that the eight signing the specifications were not the full committee at the time. But, assuming that the committee consisted of twelve at the time of the signing the supplemental contracts or specifications, still, we are of opinion that a majority of that nnmber was com- . petent to act. The committee represented the corporation in the particular matter ; and it would lead to great inconvenience, and, in many cases, work great obstruction and wrong, to adopt the construction contended for by the appellants. We think this a case when the general principle applies, that where a corporation, of other organization of persons, is represented by a select body of its members, unless there be something in its rules, or in the delegation of authority to the contrary, the act of the majority is to be taken as the act of the whole. It is the general understanding, as observed by Lawrence, J., in Withnell vs. Gartham, C. T. Rep., 388, that when a body of persons is to do an act, a majority of that body will bind the rest. See also Ang. & Am., secs. 499 to 503. When, therefore, it was stipulated that the specifications for the additional work should be signed by the committee, that stipulation was gratified by the signing of a majority of that body. Then, as to the specification in regard to the moveable pews, that was signed by the contractors, the architects and the building committee by their secretary. The price was also fixed in this specification; and the only question is, whether it was signed by the committee as required by the contract. If the secretary signed for the committee, and by their authority, as the Court was required to find, — 195 — according to the appellees’ fifth prayer, affirmed by the Court, we think there was a sufficient signing within the meaning of the contract. The act was certainly sufficiently authenticated to bind the corporation, and the specification was accepted and acted upon by the contractors and the architects, as the authentic act of all parties. (Decided June 19th, 1877.) The other small modifications that occurred in the mere detail of the work as it progressed, have not been seriously pressed; but the only prayer of the appellants that refers to them is the third, and that prayer, being objectionable upon several grounds, was properly refused. It was specially objectionable, because it concluded against the appellees’ right to recover, if the Court should find that such modifications were made, without any reference whatever to the evidence given in explanation of them, and the circumstances under which they occurred. The only remaining question is that in regard to the failure of the appellees to extend the time for the additional work. But upon examination of the contract, we find that that matter was left exclusively to the architects, and if they did not deem the extension of time necessary or proper, of course there was no extension given; and as the supplemental contracts are silent upon the subject, we may suppose that such extension was not asked for or deemed necessary. It follows from what has been said that the Court below was correct in affirming the legal propositions offered by the appellees, and in rejecting those on the part of the appellants; and the judgments appealed from must he affirmed. Judgments affirmed.