Siegel v. Hechler

SHAW, J.

The Southwestern Surety Insurance Company appeals from a judgment against it in favor of plaintiff upon a bond executed by it as surety for G. A. Hechler for the performance of a subcontract between Hechler and the plaintiff for the doing of a part of the work upon a building under erection by Siegel.

The Marlborough school for girls, a corporation engaged in the business of conducting a girls’ school, made a contract with Siegel for the erection of a school building on its premises

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at the contract price of seventy thousand dollars. The contract, with elaborate plans and specifications, was duly filed in the recorder’s office on July 12, 1915. Siegel and Hechler entered into a subcontract whereby Hechler agreed to do the excavation and concrete work on the building as required by said plans and specifications, for the sum of seven thousand dollars. Hechler began work on the subcontract about September 7, 1915, and continued at the work until November 7, 1915, at which time he absconded, leaving the work unfinished. Siegel completed the subcontract work at his own expense. Hechler was made a defendant, but he was not served with process. The case proceeded to judgment against the surety company alone.

The -complaint alleges that while Hechler was engaged in the work Siegel paid him, in accordance with the terms of the contract, $4,537.87; that after Hechler abandoned the work Siegel paid for labor performed upon, and materials and supplies used in, the subcontract work by Hechler and left unpaid by him, sums amounting to $3,925.33, and that in completing the building after the abandonment by Hechler plaintiff- expended $2,139.43, which was the reasonable cost of such completion. He asked judgment for the difference between the aggregate of these sums and seven thousand dollars, the subcontract price.

The denials and affirmative allegations of the answer set up the defense that the sums amounting to $4,537.85 alleged to have been paid to Hechler while the work was going on, were not paid “in accordance with the terms of said contract,” and that Siegel violated his agreement with Hechler, for the performance of which the bond was given, by paying money to Hechler in excess of the amount due on the subcontract at the time of such payment, whereby, it is claimed, the surety was released.