First Congregational Church of Christ v. Lowrey

HENSHAW, J.

This is an action brought against the surety on a contractor’s bond. Defendant Lowrey had entered into a contract with the plaintiff for the construction of a church. He abandoned his contract and plaintiff brought its action against him and against his surety to recover the amount of damages which it sustained by reason of this abandonment. The contract between the owner and the contractor made provision for alterations, deviations, additions, or omissions in the work to be done, and provided that the

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reasonable value should be added to or deducted from the contract price, “provided, however, that the character and valuation of any or all of said changes, omissions, or extra work should be agreed upon and fixed in writing, signed by the owner and the said contractor prior to the commencement of the work of making such alterations, deviations, additions or omissions.” The court found that certain alterations and omissions were made and were agreed to between plaintiff and the defendant Lowrey. It found the value of these, item by item—one item amounting to $164.25, another to $209, and a third to $204. It further found that the character and value of these changes, omissions, and extra work were agreed upon between the owner and contractor, but were not agreed upon and fixed in writing, or signed by the owner and contractor, prior to the commencement of the work, or at all. It still further found, “That none of such alterations, deviations, or omissions were detrimental to the interests of the defendant Pacific Surety Company, and did not materially alter the terms or conditions of said contract or bond, or change the contract between the plaintiff and said Lowrey or said Pacific Surety Company.”

That the alterations, changes, and omissions were material, within the meaning of the decisions, there can' be no doubt.

(Alcatraz etc. Assn.

v.

United States Fidelity & Guaranty Co.,

3 Cal. App. 338, [85 Pac. 156];

Barrett-Hicks Co.

v.

Glas,