Bateman Brothers v. Mapel

[242]

HENSHAW, J.

This action was prosecuted by plaintiffs against the defendant Mapel, as principal, and the defendant American Surety Company of New York, as surety, for the sum of two thousand dollars, damages sustained by plaintiffs by reason of defendant Mapel’s breach of a contract between himself and the plaintiffs, for the due performance of which contract the American Surety Company became responsible as surety. The action was tried against the Surety Company alone.

Mapel had entered into a contract with the plaintiffs to supply the latter at the site of the Hall of Justice building in San Francisco “all the terra cotta, ornamental pressed brick, and fireproofing of said Hall of Justice building, in accordance with the plans and specifications of same, and to the satisfaction of Messrs. Shea & Shea, architects.” Bateman Brothers agreed to make payments to Mapel of “ninety per cent of the value of the materials as per this contract, delivered at said Hall of Justice, conditioned that materials are satisfactory to said Messrs. Shea & Shea, architects.” The contract also contained the following clause: “It is hereby further agreed that said Bateman Brothers, if they desire, may make payments to said E. T. Mapel in advance of delivery of the said materials before mentioned to be furnished to them, and said E. T. Mapel agrees to accept such payments as part payments on this contract.”

The undisputed facts are, that Mapel failed to manufacture and deliver any material. He was experimenting in his kilns and factories, but the product of them was unsatisfactory and unacceptable. To aid him in his endeavors to produce satisfactory material, Bateman Brothers advanced him moneys from time to time to the total amount of some seven thousand dollars. Mapel’s efforts thus ending in a failure, plaintiffs were obliged to buy the material in the open market, and did so buy it, at a loss over the contract price of many thousands of dollars. The gravamen of their action is found in paragraph 7 of their complaint: “That by reason of the failure of said Mapel to deliver said materials mentioned in said contract, and to perform said contract, plaintiffs were obliged to purchase said materials elsewhere, and were compelled to pay and are now obliged to pay for said materials mentioned in said contract, and agreed to be delivered by said