National Brass Works v. Weeks

KNIGHT, J.

Defendants and cross-complainants appeal from a judgment rendered against them as sureties, in an action to recover on a bond given to secure the faithful per

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formance of a building contract entered intp between plaintiff as owner and the defendant Weeks as contractor.

The complaint alleged in substance that plaintiff complied with all the terms of said contract, but that Weeks failed to construct or complete the building as agreed in that he used materials different from and of a grade inferior to those called for by the contract, plans, and specifications, and that he omitted to perform the work and labor according to the terms of the contract or in a good and workmanlike manner; that on account of the alleged breach plaintiff sustained damages for which judgment was prayed in the sum of $7,750.

Answering, the defendant Weeks denied the allegations of plaintiff’s complaint and alleged that the changes and alterations in the construction of the building of which plaintiff complained were made at plaintiff’s request. Appellants Stradley and Newton filed a joint answer wherein, besides denying the allegations of the complaint as to nonperformance by Weeks, it was alleged that at the time said contract was entered into Weeks assigned to Stradley all moneys agreed to be paid to Weeks thereunder and that plaintiff assented to the assignment; that during the progress of the work plaintiff requested Weeks to furnish certain materials and perform certain labor in the construction of said building not called for by the terms of the contract, for which plaintiff agreed to pay the reasonable value in addition to the contract price; and that the reasonable value thereof was $3,236.75. Appellants further alleged that the changes above mentioned were made without a written agreement or memorandum to that effect having been entered into and signed by the owner and the contractor as required by the terms of said contract, and were made without the knowledge, consent, or approval of appellants, and therefore constituted material modifications of the contract and of the bond herein sued upon, amounting to a breach thereof. It was further alleged that a balance of $8,394.38 was still due under the original contract and also $3,236.75 for the extra work and materials. Appellant Stradley, separately, filed a cross-complaint containing two causes of action, to recover upon the two items of indebtedness set forth in the joint answer, and prayed for judgment in the total sum of $11,631.13.