City of Kirkwood ex rel. Blackmer & Post Pipe Co. v. Byrne

REYNOLDS, P. J. (after stating the facts). — It is impossible to sustain the finding and judgment in this case. The answer of the defendant, Title Guaranty & Trust Company, charges and admits that on an account of $8331.98, a payment of only $3050.29 had been made, and denies that the balance due is $1894.57. According to this admission, $281.69 was due, even by the surety company. We do not understand why relator should not have had judgment for this. Moreover the defendants in their requests for findings set out that Byrne, admits his liability for the full amount sued for, $3331.-91, and claims credit for $2000, leaving a balance due by him of $1331.91, for which against defendant Byrne, relator is entitled to a judgment with interest. Why the court, with this admission, entered judgment in favor of both defendants is not comprehended. The refusal of the court to allow relator to file or to have considered its declarations of law after the finding of the court had been announced, was correct. [Young v. Stephens, 66 Mo. App. 222; Butts v. Ruby, 85 Mo. App. 405.] Passing these, the court, as shown by an examination of the abstracts of testimony and by the course of the trial, as well as by the above finding, proceeded upon the theory that relator was bound to prove what particular items as set out in the account and as contained in each car, had gone into these district sewers. As we understand the evidence in the case, it is conclusively shown that the number of feet of pipe, “Ts,” “Ys,” etc., charged for in this account were used in the construction of these district sewers. The price and value of these materials are not in dispute. That their aggregate in value, as given in the accounts, is $3331.98, is practically admitted in the answer of the surety company, that company pleading that $3050.29 had been paid on account thereof. It is true that this admission seeks to confine it to the aggregate of the price charged in the account, but this is a mere play on words. It is also [497] clear that the first account filed, by which $2000 was credited as a payment, was incorrect in that that account included charge for material that had gone into the public sewers. The plaintiff relator corrected this and deducted from the account the items that went into the public sewers. When it corrected one side of the account it was bound to correct the other. It had a right to deduct from the credit the apportioned amount covered by the charges deducted. This was a mere act of bookkeeping entry, which in no possible manner prejudiced either of the defendants. The testimony shows it was an error induced by Byrne himself. Certainly it did not prejudice the contractor, who was principal on the bond, and how it mattered to the surety or injured or misled it, is not apparent; It is true the contract of the surty is to be enforced only as he has made it. The learned and industrious counsel for the respondents urge that it is elementary that the contract of the surety must receive a strict construction and cannot be extended beyond the fair scope of its terms and cannot be extended by implication, “the surety being a favorite of the law and as such has the right to stand on the strict terms of his obligation. It is to be strictly construed and cannot be extended beyond the fair scope of its terms.” While it is a rather venerable rule that the surety is “a favorite of the law,’* the force of this is greatly shattered by latter-day conditions, suretyship having become largely a matter of bargain and trade, and no longer the voluntary obligation of friends. Notwithstanding the fact that this sentimental consideration has to a great extent disappeared it, however is still true that the obligation of the surety is not to be extended beyond the letter, of the bond. But applying that to the case at bar, we are unable to see that it is in any way violated or its force diminished by holding the surety in this case to the [498] terms of its bond, by which it undertook to pay, if the contractor did not pay, claims for material furnished which went into these district sewers. Nor do we think that the surety is in any way injured by the change in bookkeeping which was made, for this is all that it was, in the application of credit to that part of the account, to which it properly belonged. The creditor had a right, in the absence of a contract or specific direction to the contrary, to do this. This change of credit produced no change in the relative situation of the parties, if it was correctly done and made the payment to apply only to that part of all the pipe furnished which actually went into the construction of the district sewers. That appears to be what was done. If properly adjusted, the fact that before then the credit had been applied to the whole account is immaterial and wrought no harm. Neither principal nor surety are entitled to claim credit for more than the actual amount pertaining to the account; the surety was not misled, the real situation of the parties had not changed. The radical error in that part of the finding of fact which we have quoted, lies in the concluding part of it in which the learned trial judge finds: “There is no evidence in the case on whichthe court can base a finding of fact that the particular pipe sued for, or any particular shipment, or any part of any shipment, went into the district sewers.” This theory was forced into the whole trial of the case, by an extremely technical line of objections to evidence. In our view of the case, it is radically wrong. The basic fact in the case is, how much of the pipe and fittings furnished by the relator to the contractor went into the district' sewers. What cars they came out of, of what particular shipment they formed a part, is wholly immaterial. The case appears to have been tried upon the theory that the account filed with the petition was the cause of action. This is a mistake. The cause of action is on the bond; the breach assigned being the non-payment for sewer pipe and fittings499 furnished under contract to Byrne by the relator. The account filed, itemized as it is by cars and dates of shipment, is merely one link in the chain of the evidence by which the ultimate fact is attempted to be proved. Its principal service is to furnish to the defendant a statement of quantities and prices that it can see that it pays for no more than went into the work, but the idea that it is to govern to the extent that each carload must be traced from the station to the sewer excavation, or that all the material used in the construction of the sewer must be identified as having come out of some particular car, is absolutely foreign to the merits of the case. In point of fact, we are reluctantly compelled to say that this case appears to have been tried on such extremely technical lines that we fear that justice .and the right have been sacrificed to naked technicalities. The point to be determined is very simple and easy of solution. Actual measurements if not made on the ground, can be made, to determine just how many feet of pipe and fittings went into the construction of these district sewers, so far as constructed by the defendant Byrne. The assistant city engineer did testify to measurements made and that they were made officially, and to determine that very fact. Objection was made to his testimony but the objection was properly overruled. We might, on the testimony in this record, enter up judgment here for the amount due, as is always within the power of this court, and as it was our first impression should have been done here. But lest we commit error as to amount or as to date from which interest should be allowed, we prefer not to do so. To repeat, we hold, and so determine for the reasons hereinbefore given, that the relator had a right to correct the credit of $2000, as entered in the first account filed as a credit to this account for'material which entered into the construction of the district sewers, and apply the proportionate amount of that $2000 which covered the pipe, etc. furnished and which went into these district sewers. [500] That amount can easily be established by evidence. We accordingly reverse the judgment of the circuit court and remand the cause with directions to the circuit court to proceed in accordance with this opinion. All concur.