Ernst v. Cummings

California Supreme Court Jul 1, 1880 No. No. 6,541Published

Before: McKinstry

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Holding. The court held that the building contract's covenants were dependent, meaning the plaintiff was not obligated to pay the contractor until conditions precedent, such as the architect's certificate, were met, and that the trial court erred by failing to make findings on material issues regarding notice and the adequacy of the defense of lien actions.

Issues

Whether the trial court erred by failing to make findings on material issues regarding notice and the defense of lien actions.
Whether the covenants in the building contract were dependent or independent conditions.
Whether the evidence supported a finding that the plaintiff had failed to pay amounts due under the contract prior to the filing of liens.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“These denials of allegations in the complaint constitute issues upon which the Court below did not find. The issues were material, and should have been passed upon.”

“The promises of the parties were dependent one upon the other, and were to be performed in the order of time in which performance- was contemplated by their agreement.”

Synopsis

Contract — Bond—Findings.— Tlie defendants, (one as principal, and the other as surety) executed a bond to the plaintiff, conditioned for the performance of a building contract, by tlio terms of which, the principal agreed to perform tho labor and furnish the materials for tho construction of tho building, and further agreed that no lions by mechanics, material-men, or laborers, should be filed against it; and the plaintiff agreed to pay seventy-five per cent, of the contract price during the progress of the building, upon certificates of tho architect, and the balance upon its completion. In an action upon tho bond, it appeared that liens were filed upon tho building by material-men, and that suits were brought and judgments recovered against the plaintiff and contractor for their foreclosure ; that plaintiff had paid all of the contract price but 5750, which had not become due at the time of the filing of the liens, and that ho paid this balance, and 5594 in addition, upon tho judgments; and the complaint alleged, and tho answer denied, that the surety (defendant) had seasonable notice of the pendency of the foreclosure suits, and that they were properly defended by the plaintiff; but tho Court failed to find upon these allegations. Held, that the issues were material, and should have been passed upon.

Id.—Dependent Promises.—Held further, that the promise of 'the contractor to protect the building from liens, and the promise of the plaintiff to pay, were mutual and dependent, and that the plaintiff was authorized to retain tho 5750 to meet the liens.

Id.—Id.—Where mutual promises go to the whole considerations on both sides they are concurrent and dependent, and neither party can claim performance, without performance on his part.

McKinstry, J.: This action is to recover the sum of $594.75 upon a bond attached to a building contract. The obligation reads as follows :

“ Know all men by these presents, that I, Colin Chisholm, as principal, and George Cummings, as surety, all of the City and County of Los Angeles, State of California, arc held and firmly bound into H. Ernst, of the same place, in the sum of $1,500, gold coin of the United States of America, to be paid to the said [181]II. Ernst, his executors, administrators, and assigns ; for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents.

“ Scaled with our seals and dated the 81st day of May, 1877.

“The condition of the above obligation is such, that whereas the above bounden Colin Chisholm has entered into a certain contract with the said H. Ernst to do the carpenter-work, brickwork, plastering, painting, stairs, graining, glazing, plumbing, gas-work, and all the work, and furnish the materials therefor, upon a certain building to be erected on the south-west side of Temple Street, in said city and county, to be known as the Ernst residence, according to the plans and specifications made by Charles W. Davis, architect of said building, and to which specifications and said contract, the latter of which bears even date herewith, reference is hereby made and the same are a part hereof, for all purpose expressive of these contracts and tenor.

“ Now, if the above bounden Colin Chisholm shall well and truly perform all the obligations in said contract by him to be performed according to the express terms, meaning, and effect thereof, and furnish the materials and perform the work at the times and in the manner therein stated, then the above obligation to be void, otherwise to remain in full force and virtue.

“ Colín Chisholm, [Seal.]

“ Geo. Cummings, [Seal.]

“ Signed, sealed, and delivered in the presence of Charles W. Davis.

“ Indorsed: Bond.”

The portions of the contract between plaintiff and Chisholm which are necessary to be considered arc: “And the said party of the first part does hereby for himself, his heirs, executors, and administrators, covenant, promise, and agree with and to the said party of the second part, his executors and administrators, that he, the said party of the first part, his executors or administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said party of the second part, as specified, well and truly pay, or cause to be paid, unto the party of the second part, his executors, administrators, or assigns, the said sum of $2,650 gold coin of the United States

Ernst v. Cummings

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