Fruit Growers Supply Co. v. Goss

NOURSE, P. J.

The plaintiff sued for the cost to it of labor and materials furnished defendant Goss in connection with a contract entered into between plaintiff and said defendant, the faithful performance of which was the condition of a bond executed by the defendant Globe Indemnity Company. Plaintiff had judgment for $4,332.02 with interest and costs and the surety company 'appeals.

On February 11, 1929, the first draft of the contract between plaintiff and defendant Goss was drawn up, providing for the remodeling by Goss of three lumber kilns with certain specifications and guaranties. On this same date Goss obtained the bond from the surety in the sum of $5,000. The final draft of the contract was dated March 16, 1929.

Plaintiff claims and the lower court found that Goss failed in the following details, all of which were covered in the contract: (1) he did not furnish labor and materials; (2) he gave the job his personal supervision only to a limited extent; (3) he did not remodel one of said kilns within four months of the signing of the contract; (4) he did not remodel any kiln to the satisfaction of the supply company; (5) he did not remodel any kiln in accordance with the guaranties as to successful operation; and (6) he did not pay the company the cost to it of labor and materials, having not completed a kiln to its satisfaction.

As its first and main defense appellant quotes from the bond: “That the surety shall-not be liable . . . for the non-performance of any guarantees of the efficiency ... of any work done or materials furnished.” It then contends that the breach of contract was not a failure in construct

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ing the kiln according to the plans and specifications, but was the failure of the kiln, as so constructed, to meet the guaranties of efficiency. But it is admitted that the kiln was not satisfactory, whereas the contract provided: "Said second party hereby agrees to remodel one of said dry kilns within the period of four (4) months from and after the date of this contract, to the satisfaction of said first party

and

in accordance with the following guarantees ...” Also that the contractor would reimburse the supply company for expense of labor and materials “in the event that said first kiln shall not, when remodeled as aforesaid, operate to the satisfaction of said first party, ...” Respondent argues that to hold that merely because of the presence of guaranties in the contract the surety company is not to be held for the unsatisfactory nature of the kiln is to make the bond void and meaningless. It is also brought out that beside the breach of contract in regard to guaranties and satisfaction, Goss failed in four other respects—one, two, three and six above—all of which respondent claims are in breach of contract and covered by the bond.