Roca v. Mazzei & Aetna Indemnity Co.

ESTOPONAL, J.

On the 26th day of February, 1903, by notorial act,' Simon Segari entered into a contract with Frank D. Mazzei, one of the defendants herein, a builder, for the construction and delivery of a two-story frame slated building, etc., on Park Place, near City Park Avenue, the contract price being $6,600.00.

The Aetna Indemnity Company intervened in the building as surety for the said F. D. Mazzei, and the contract and bond were duly recorded as provided 'by law.

The builder defaulted on his contract, failing to pay the material furnished, and the plaintiff, J. V. Roca, a furnisher of material, institutes this proceeding against the defaulting builder and said Aetna Indemnity Company to recover the sum of $923.15.

The defendant surety company, in its answer, denies that the material sued for entered into the construction of any building on which it had obligated itself as surety.

From a judgment in favor of defendant company the plaintiff appeals.

We read in the building contract that the defendant company bound itself as surety for a “dwelling to be built on the property belonging to Mr. Segari situated on Park Place, near City Park Avenue. No lots being particularly designated or described. Mr. Segari, for whom the dwelling was built, on the trial before and in answer to direct questions by the -Court, said that he owned twelve lots on City Park Place when he entered into the contract with Mazzei, and that he owned none on the street where the dwelling was placed. Even though the contract does not specifically describe or locate the lots on which the building was to be erected we are satisfied that the intention of the parties was to put it on one or more lots then owned, and being on Park Place, nearest the City Park Avenue.

The record shows, and they are the uncontested facts, that a building, answering in every particular the specifications of the contract, was erected, but that it was put on a lot or lots and on a street other than those named in that instrument, and further, that the said lots were not the property of Segari at the time the contract was made, but were purchased subsequently.

Plaintiff urges that the change in the location of the building is an immaterial one and should not operate a discharge of the surety, specially in this case where all of the lots concerned were in the same block or square and plaintiff's counsel further argues in support of his position that Courts might as well discharge the surety where there was a variance of a few inches in the size of the lot named in the contract, and that built on as to do so in the case at bar.

This is an erroneous assumption predicated upon facts too widely different, from those appearing in the record in this case.'

We adopt the language of counsel for defendant which fairly states the proposition as follows: It is not a question of a few inches, but of the entire thing. The whole lot is different. Each and every part and parcel is different. Each is a distinct entity'; separately bought and sold, separately assessed, separately built upon, each capable, irrespective of the other of supporting a contract for a (building; the one built upon not even owned by Mazzei at tire time the contract was signed.

The bond here -was executed pursuant to the provisions of an act of the Legislature of 1894, which law was enacted entirely in the interest of the class to which the'plaintiff belongs and provides that the contract and bond shall be recorded within one week after they are signed and before the work is commenced, the obvious intent of the law being to give to material men and others interested áíi opportunity to examine the contract and ascertain its terms' and conditions, and who is the surety named.

A person having a correct appreciation of the building force of such a contract, and plaintiff’s business justifies us in assuming that be did, surrounded as he is by every safeguard which the law has found it possible to throw around him, should be careful to observe its terms and to exact from all parties to it that same strict observance, which he should give to them.

Defendants neglect and failure to have informed himself as to whether the absolute change of location made in the contract 'had been assented to by the defendant surety company, was fatal to his rights, as he was knowingly doing a thing not in the contract, in fact, furnishing material for a building placed on a street for which there was no contract at all.

It will not avail for plaintiff to say that the house for which he furnished material was built practically where the contract intended it to be, the only difference being that instead of the building being placed on Park Place, near City Park Avenue, it was placed on 'City Park Avenue, near Park Place, because the real question' is, are the lots built on separate, and independent of those, named in the contract, and if so, whether the too locations were each independent by capable of supporting a building contract.

We so find, and so finding, are not called upon to state just what variation in or modification of the contract would or would not discharge the surety, but we must hold in the instant case that the contract must be considered as found and that nothing can be read into it which would make an entirely different one.

It would be dangerous for this Court to undertake to say just how much of a variation from-a building contract as relates to location , where the difference is in inches or a few feet would of would not release the surety, as the Court’s decree would be predicated on the facts in each case as it arose, but as we have said, the facts in the instant case do not present such an immaterial variation as gives us discretion in the premises.

February 6th, 1905.

1. Any material change in a contract for the performance of which a surety is liable, made without his consent, will operate to relieve him from liability.

2. No rule of interpretation or construction can be availed of to refine away terms and conditions of a contract expressed with sufficient clauses to convey the plain meaning of the parties as disclosed by the instrument, read in the light of surrounding circumstances and the purpose for which it was made.

3. Where in a building contract it is stipulated that the house contracted to be built is to be built on a certain designated property and in a certain described locality, a bond being taken for the faithful execution of the contract on the part of the builder; and where, subsequently, and without the knowledge or consent of the surety on the bond, the contract is changed so as to provide for the construction of the house on an other property and in another locality; and -where, with knowledge of the terms and conditions of the original contract and of the subsequent change thereof, a third person furnishes thereafter, materials to the builder to be used, and which were used in the construction of the house on the changed property and location, and the contractor defaults in the payment to the said third person, there can be no recovery therefor from the surety,

The United States Supreme Court, in the case of United States vs. Boeker, et al., 21 Wallace, p. 652, where the facts involved were similar to those presented here, the variance being a change, of location, said: “We think this term of the bond (location) is of the assence of the contract It is hardly less so than (he amount of the penalty. One defines the place where the liability must arise, the other the maximum of the liability for which the sureties stipulated to be bound. The former can no more be held immaterial than the latter.”

“No distillery having been carried on at the place named, the contract never took effect.”’

Applying this reasoning here we must affirm the judgment ot the lower 'Court and it is affirmed.