Noyes v. Granger

Rothrock, J.

*230

1. sthiety : iiaboncf:'cannot be extended by implication,

*229 — The court instructed the jury to the effect *230 that the bond given by Granger and Smith, with the other defendants as sureties, secured the plaintiff in the performance of all the stipulations contained in the written agreement between the plaintiff and Granger and Smith. To this instruction the defendants excepted at the proper time, and assign the same as error. The ruling upon the demurrer is also assigned as error. The same question is presented by both assignments, and they may be considered together.

The argument of counsel for appellants is that the contract entered into by the plaintiff with Granger and Smith is not an entirety, but is severable, and that the bond by its terms only secured the plaintiff in the fulfilment and completion of a contract then existing between the plaintiff and Harrison county for the construction of the ditch.

The contract entered into between the parties contained several-distinct propositions or undertakings. One was that Granger and Smith should complete the ditch,' and receive from the county the pay for the work. Another was that they would pay for the grader and ditcher. Another that they would pay plaintiff for the work which had already been done on the contract of H. C. Wills, provided plaintiff would obtain an assignment of Wills’ contract to Granger and Smith. The bond in its condition recites “that the above bounden O. E. Granger and Isaac Smith have this day entered into a contract to and with- John H. Noyes for the fulfilment and completion of a contract now existing between John H. Noyes and Harrison county for the construction of the ‘Spooner ditch.’ Now, if the said O. E. Granger and Isaac Smith shall well and truly keep and perform the said contract so made with John H. Noyes, then this obligation to be void, otherwise in full force and virtue.”

It appears from the record before us tliat the county required a bond of A. E. Noyes, the original contractor, to secure the faithful completion of his contract, and that when A.-E. Noyes sold out his contract to the plaintiff a bond to *231 the like effect was executed by the plaintiff. These two bonds, together with the bond of these defendants, were all deposited with the county auditor.

These facts tend to show the purpose for which these bonds were taken. The first named was to secure the county; the others were to indemnify the obligees against any claim the county might have for a failure to complete the ditch. The bond in suit imports nothing more than this. The sureties are bound by its terms only. Their liability cannot be extended by implication. Their undertaking, in its express terms, is that Granger and Smith shall well and truly keep and perform the said contract. The said contract is recited to be “a contract with John H. Noyes for the fulfilment and completion of a contract now existing between JohnH. Noyes and Harrison county for the construction of the Spooner ditch.” When the ditch was completed, and the work accepted by the county, and John H. Noyes released from liability for the construction thereof, the sureties on this bond were discharged from all liability. It seems to us it would be a wide departure from the obligation assumed by this bond to hold that the sureties thereto are bound to pay the price agreed to be paid for the ditcher and grader, or to answer for any default of Granger and Smith growing out of the assignment of the contract of Wills to them. Although these obligations are contained in the same written agreement, they are distinct undertakings, not referred to in the bond and not embraced in its terms. These sureties might well bind themselves that Granger and Smith would faithfully complete the ditch according to plaintiff’s contract with the county, and save^ him harmless from his obligation to the county; but 'they cannot be held for any other default of Granger and Smith, because, as we understand their bond, they did not so bind themselves. There are other errors assigned and argued which we need not discuss. They relate to the sufficiency of the evidence to sustain the verdict, and to the admission and rejection of evidence. None of them seem to us to be well taken.

*232 For the error above pointed out the judgment must be reversed, and the cause remanded for a new trial. Of course, it must be understood that we determine nothing as to the liability of O. F. Granger and Isaac Smith upon their written agreement with the plaintiff. This action is founded upon the bond.

Reversed.