Joblin v. Illinois Surety Co.

REYNOLDS, P. J. Action on contract and bond for the erection of a building to be occupied as a residence by plaintiff, who seeks to recover $1728.28 as ex- . cess necessarily paid out by him over the contract price to mechanics and materialmen in order to complete the building, the contractor, Banner Land & Building Company, as it is alleged, having abandoned the work before its completion. The action was originally brought against the contractor as well as against the Illinois Surety Company, .surety on the bond, but was dismissed as to the contractor, no service of process having been made upon it and it not appearing to the action. The trial was before the court, a jury hav — 138 — ing been waived, and at its conclusion the court found in favor of defendant and entered up judgment accordingly, from which plaintiff appealed. At the close of the' case defendant offered a demurrer and it is stated in the abstract prepared by appellant that the court sustained this demurrer.' That statement is obviously incorrect. The demurrer was offered but no action of the court upon it anywhere appears. Moreover a memorandum filed by the court in announcing its decision, as well as the judgment itself, which appears in the short transcript filed with us, negatives the idea that the case went off on demurrer. ' The judgment recites the appearance of plaintiff and the Illinois Surety Company by their respective attorneys, the waiver of a jury, and then recites that the parties submit the cause'to the court “upon the pleadings, the 'evidence and the proof adduced, and the court having heard and duly considered the same, and being fully advised in the premises, doth find the issues in favor of the defendant Illinois Surety Company, wherefore, it is considered and adjudged,” etc. Obviously, this is not a judgment upon a demurrer. In fact we do not understand that beyond- this recital in the abstract learned counsel for appellant so contend. In rendering his decision in the case the learned trial judge- filed a memorandum which has been brought up by appellant. As this finding or memorandum was not made at the request of either party, and does not therefore fall within the provisions of section 1972, Revised Statutes 1909, it has not the effect of a finding under that statute, that is, does not have the' effect of a special verdict, as do such findings (South St. Joseph Land Co. v. Bretz, 125 Mo. 418, l. c. 423, 28 S. W. 656), and is to be treated as a general verdict. [See Lesan Advertising Co. v. Castleman, 265 Mo. 345, 177 S. W. 597.] As was said by our Supreme — 139 — Court in Mead v. Spaulding, 94 Mo. 43, 6 S. W. 384, •while such opinion cannot he made to take the place of instructions, or a finding of facts given as an instruction, “the opinion of the trial court may be cited and used in the consideration of the case presented by the record, and in that respect is often of great value to us; but it is not part of the record upon which the case must be determined in this court. ’ ’ That the appellate courts have availed themselves of such memorandum without having been bound by it as a part of the record, appears in very many cases. In the case at bar no declarations of law were asked unless the demurrer to the evidence which we have before referred to as not having been passed upon may be considered as such; no declarations of law as such were given. It is clear that this case was determined by the trial court largely on the weight of evidence, the evidence being conflicting. Where that is the case, if no error has been made in the application of law, the finding of the trial court is conclusive upon bur court. [Jordan v. Davis and other cases post.] We cannot state the case better bn its facts or on its law than stated by the learned trial judge, and hence avail ourselves of the memorandum filed by him, not, as before said, as conclusive upon us, or as part of the record proper, but as a correct and succinct statement of facts and of the law. For a better understanding, however, of one of the principal points of controversy in the case, it is well to say that article III of the contract and bond, in substance, provides that no alterations shall be made in the work, nor extra work done, except upon written order of the architects, and article Y, in substance, provides: “Should the contractor at any time refuse or neglect to supply a sufficiency of properly-skilled workmen, or of materials of the proper quality, or fail in — 140 — any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architects, the owner shall be at liberty after three days’ written notice to the contractor to provide any such labor or materials, and to deduct the cost thereof from any money then due, or thereafter to become due to the contractor, under this contract; and if the architects shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work and to enter upon the premises and take possession, for the purpose of completing the work included under the contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials thereof; . . . The expense incurred by the owner herein provided, either for furnishing materials or for finishing the work, and any damages incurred through such default shall be audited and certified by the architects, whose certificate thereof shall be conclusive and binding upon the parties.” The architects here referred to are Mariner & La Beaume, and the member of that firm who seems to have had charge of this particular work was Mr. Mariner. This by way of explanation. We use so much of the memorandum of the court above referred to as we think material and necessary, as follows: “Otn the 12th day'of August, 1907, plaintiff A. H. Joblin entered into a contract with the defendant, the Banner Land and Building Company, for the erection of a certain dwelling house, for the faithful performance of which contract the Banner Land and Building Company and its codefendant, the Illinois Surety Company, entered into a bond in the sum of — 141 — $2849. The contract and bond were in the nsnal form and provided for the work being done under the supervision of Mariner & LaBeaume, architects, and for the making of alterations and payments under the contract on the certificates of such architects. “The work progressed under the contract in'the usual way until some time in the latter part of November,' or the first of December, when, the evidence discloses, the plaintiff visited the work and found no work being done and so reported to the architect, Mr. Mariner. “The architects then, under date of December 9,. 1907, gave to the defendant Banner Land and Building Company a notice, as provided in the contract,.'that owing to the fact that no work had been done on the building for some time past, they begged to call attention to article V of the contract and to notify said defendant that unless this work was started within three days from date that they would take other means to complete the contract. “So far, there is no controversy in the evidence. The evidence discloses that then the architect sought to locate Mr. Morris, the president of the Banner Land and Building Company, but found him out of the city. At the same time the agent of the defendant Illinois Surety Company, having received notice of the existing condition, took the matter up in a general conference between Mr. Mariner, the architect, Mr. Atwood and Mr. Hopkins, representing the defendant Illinois Surety Company. As to what was then done, the witnesses differ. Mr. Mariner testifies that he took the matter up with 'Mr. Atwood and informed him that Mr. Morris, the president of the Banner - Land and Building Company, was out of town and asked him how to proceed with the least possible delay, and states that from that time on he proceeded! to do the work on the day basis; and on consultation — 142 — with Mr. Atwood employed William. Morris to superintend the work; that thereafter all payments were made after approval by Mr. Atwood, agent of the Illinois Surety Company; and that thereafter he (Mr. Mariner) discharged Monis and employed one Murphy- to complete the work. “In brief, Mr. Mariner’s testimony is to the effect that at or about December 9, and after the giving of the notice under date of December' 9, above referred to, he as the representative of the owner and with the consent of the defendant Illinois Surety Company, proceeded with the completion of the work on behalf of the plaintiff, and that the connection of the Banner Land and Building Company with the work from that time on ceased. “On the other hand, Mr. Atwood testified that, on receipt of a copy of the notice of December 9, he took the matter up with his Chicago office, and as a result thereof Mr. Hopkins, representing the defendant .Surety Company, came to St. Louis, and that he and Mr. Hopkins and Mr. Mariner took the matter up and it was agreed that the work should be continued by the Banner Land and Building Company under the direction of its superintendent, Mr. William- Morris, and that the payments should be made with the o. k. of Mr. Mariner and himself, Mr. Atwood; that thereafter he continued to o. k. such payments as were made on account of the work and labor done and material furnished by the Banner Land and Building Company, and so continued up to January 20,1908, when, according to his testimony, a man named Murphy came into his office with an order for some $650 for completing the work; and that he then, for the first time, learned that the work was not being completed by the Banner Land and Building Company. “In addition to this, there is the testimony of Mr. William Morris to the same effect as that of Mr. — 143 — Atwood, that he, as superintendent of the Banner Land and Building Company, was continuing the work and did so continue it until he was prevented from further doing so by Mr. Mariner; and furthermore, the de-' fendant’s contention on this point is supported by the action of the parties at the time, as evidenced by their ■letters. In a word, if the position of Mr.- Mariner and of the plaintiff that the connection of the Banner Land and Building Company with the work was termiated at or about December 9, when the notice aboye was given, why was it necessary for the architects to again, under date of December 20, give to the Banner Land and Building Company a notice to proceed to complete the brick work within three days or that they would relet the contract? “The determination of the question of fact as to whether or not the defendant Banner Land and Building Company renounced the contract or abandoned the work, or whether, on the other hand, they were so slow in the completion of the work that the architects, under the provision of the contract, gave them the three days’ notice provided for in the contract and took the further steps therein provided for the completion of the work by other parties, is, in the opinion of the -court, determinative of the case; and for that reason the evidence on this point has been given most careful ■consideration, and as a result of that consideration, the court has concluded that the Banner Land and Building Company did not renounce the contract or abandon the work. “And this conclusion is supported by the action of the parties themselves, for, if the Banner Land and Building Company renounced the contract, then it was not necessary that the architects should give to them any notice, but the plaintiff would have had the right to proceed to complete the work without any notice. But instead of so doing, the parties themselves at all — 144 — times proceeded under the theory that the contract had not been renounced and that the conditions existed which are covered by article V of the contract in question. “And if the conditions covered by article V did exist, then, even though we should presume, which the court does not find, that all steps, as provided by that article, were properly taken by the architects before completion of the work, nevertheless, the failure of the plaintiffs to allege and prove that the expense incurred by the owner for finishing the work had been audited and certified by the architect is fatal to his right to recover. [See American Bonding Co. v. Gibson County, 127 Fed. 671.] “In that case the provisions of the contract were the same as those of article Y of the contract here in question, and there all steps were properly taken, as provided by the contract in said article V. The plaintiff brought suit against the bonding company to recover the cost of completing the work. The plaintiff there, as here, neither alleged nor proved that the architects had audited and certified the expense and damage incurred by the county through the default of the contractors, and for lack of this certificate, the defendants insisted the suit was prematurely brought and no recovery could be had; and it was held that the obtaining of this certificate of the architects was a condition precedent to the plaintiff’s right of action, and that the petition must allege and the fact must be-proven that at the time of the bringing of the suit the expense, damage, etc., had been audited and certified by the architects, or that the architects had legally refused to do so, though properly requested.” (We’may add here that this same case of American Bonding & Trust Co. v. Gibson County was again before the United States Circuit Court of Appeals of — 145 — the Sixth Circuit and followed on the above point.) [See 145 Fed. 871.] Continuing, the learned circuit judge refers to Heidbrink v. Schaffner, 147 Mo. App. 632, 127 S. W. 418, as a case particularly relied upon by the plaintiff below and as one in which a construction of an article similar to article Y was involved, and distinguishes that case from the one at bar, in that there the contractor had absolutely renounced the contract, hence ' it was held that no notice or certificate was necessary. Continuing the learned trial judge said: “How different, however, is the case at bar! As above set out, not only does the evidence here fail to show any renunciation of the contract, but the parties, particularly the architects, here at all times, at least up to the time of issuing a certificate authorizing the plaintiff to take over and complete the work, attempted to proceed under the provisions of article V of the contract, and this fact is shown in the plaintiff’s own case. And furthermore, the court, as above set out, has found from the evidence that there was no renunciation of the contract, or even abandonment thereof, and that the work was continued up to December 21, 1907, when, as Mr. Mariner says, he discharged Mr. "William Morris, who was conducting the work for the Banner Land and Building Company, and turned the work over to Mr. Murphy. ’ ’ Accordingly the court found for the defendant, judgment following. 'We have read all of the evidence as set out in the abstract filed with great care and find no reason to. hold that the conclusion arrived at by the learned trial court is not supported by substantial evidence, and we think that in the determination of the cause that court has correctly applied the principles of law here applicable. We accordingly adopt it as our own. — 146 — Learned counsel for appellant argues that defendant did not .plead want of certificate from the architects,, citing among other authorities Nodaway Drainage District No. 1 v. Illinois Surety Co., 252 Mo. 543, l. c. 558 and 563, 160 S. W. 999. It is true that’the answer does not plead the lack of the certificates, called for in paragraph 5 of the contract. But the case was tried on the theory that this paragraph was before the court and that defendant relied upon the absence of the certificate. Thus when plaintiff offered to prove the value of the wbrk and material, it was agreed that the witnesses, if present, would testify as to the correctness of. these items, counsel for defendant, however, reading this article V at length, made specific objection to the competency of the evidence on the ground that under article V “an audited and certified statement of the architect is the only method of proving” the liability of the defendant for these items. Without passing on the objection the court admitted thé evidence. No objection was made by counsel for plaintiff, that the absence of a certificate had not been pleaded. The case was tided on'the theory that the question as to the necessity of the certificate1 was in issue. In fact, unless that was so, the citation of counsel for plaintiff to .the trial court of Heidbrink v. Schaffner, supra, which the trial judge states was a cause upon which counsel for defendant “place great stress,” would have been useless, as the question of the necessity of a certificate was there the principal point in decision. Parties are held to the theory on appeal upon which they tried the case. So too, it is argued on the authority of Lackland v. Renshaw et al., 256 Mo. 133, 165 S. W. 314, that this being a hired surety and the doctrine strictissimi juris not applying that no harm resulted from the absence of the certificate. In the face of the finding of the trial — 147 — court for the defendant on the evidence, we do not think the Lackland case controlling or applicable here. ' Appellant’s learned counsel attack the conclusions of law as set out in the memorandum filed as if they were before us for review. While we adopt them, we are not to deal with them as before us for review. As before remarked, we cannot treat them as part of the record or as determinative of any question of law in them; we use them only as expressing our view of the facts and the law. In a ease such as this, in which the trial was before the court, a jury having been waived, the evidence heard, no declarations of law asked, and a finding for defendant and judgment accordingly entered, the case stands as upon a general verdict in favor of the defendant. Treating the memorandum as surplusage and. as not before our court, the judgment itself is nothing more nor less than a general finding and judgment in favor of the defendant on disputed, controverted evidence in .the case. See Patterson v. Patterson, 200 Mo. 335, l. c. 340, 98 S. W. 613, as also Lesan Advertising Co. v. Castleman, supra, and to what is said in that case in the dissenting opinion, 165 Mo. App. 575, l. c. 603, 148 S. W. 433, approved by the Supreme Court. In brief, it is such a finding and judgment as cannot be reviewed on appeal, “unless declarations of law are asked and refused in order that the appellate court may see upon what theory the case was tried. Unless this is done the finding of the court is incontrovertible.” [Jordan v. Davis, 172 Mo. 599, l. c. 608, and cases there cited, 72 S. W. 686; Chrisman v. Scholl, 177 Mo. App. 58, l. c. 60, 164 S. W. 131.] So our court held in Olive Street Bank v. Phillips, 179 Mo. App. 488, 162 S. W. 721, where at page 494 in the official report it is said: “As the cause was tried below before the court without a jury, a jury having been waived, and no declarations of law were asked by either party and none given, if there is any sub — 148 — stantial evidence upon which to base the judgment below, and if the latter can be held to be correct upon any theory whatsoever, it is our duty to sustain it. ’ ’ The judgment of the circuit court is affirmed. Nortoni and Allen, JJ., concur.