Hellman v. City Trust, Safe Deposit & Surety Co.

The complaint shows that on the 7th day of December, 1898, the plaintiff entered into a contract in writing with one Blake, by which the latter agreed to do certain work, consisting of blasting rock and excavating for sewer connections on premises at the northwest corner of Madison avenue and 117th street, on or before the 15th day of July, 1899, and other work consisting of blasting and removing rock from the same premises on or before the 15th of Slay, 1899; that Blake, as principal, and the defendant, as surety, duly executed a bond to the plaintiff in the penalty of $10,000, conditioned for the faithful performance of the contract by Blake; that the contract provided that partial payments should be made on account of the contract work every 15 days on certificates of a designated surveyor as to the amount earned, but that 15 per cent, should-be reserved until the completion of the work; that the plaintiff kept and performed all of the terms and pro

Counsel for plaintiff, in opening the case, did not waive any right of his client to prove the material allegations of his complaint or make any admission inconsistent therewith. He stated that plaintiff would prove that, during the progress of the work, Blake was falling behind in paying for the labor, and that Blake, plaintiff, and plaintiff’s counsel called on defendant, and Blake requested the defendant to consent to the payment of the full amount earned from time to time without deduction, in order that he might be able to perform the contract, and that with full knowledge and consent of all the parties the.provision with respect to withholding the 15 per cent, was waived, and thereafter payments in full were made; that the time of performance was first extended 45 days, with the consent in writing of the defendant, and that thereafter, when Bláke was again in default with respect to the time of completion, a conference was had between him, plaintiff, and defendant, and with the full knowledge and consent of the-defendant the time of performance was further extended from time to time, and strict performance as to time was “wholly waived by the defendant”; that subsequently, at a like conference between all the parties, a substitution of surveyors was agreed upon, and that thereafter, with full knowledge and approval of defendant, Blake continued the work, receiving payments, in full from time to time on the certificate of the substituted surveyors, until the middle of May, 1900, when he abandoned the contract, having a large part of the work uncompleted; that after giving the notices required by the contract, and continued default on the-part of Blake, and notice to defendant of his default, and an opportunity to it to take charge of and complete the work, plaintiff completed, it at an expense, including the payments made to Blake over the contract price, of more than the penalty of the bond. The judgment was granted and is sought to be sustained, upon the theory'that parol evidence is not admissible to show the facts alleged and offered to be proved.

The defendant’s contract being one of suretyship, it is claimed that it could not be waived in any of the three particulars specified, except by an- agreement in writing. Of course, a valid new contract could not be made by parol, nor could the liability of the surety be enlarged or extended by parol. Here, however, was an existing contract in the performance of which the surety was interested, because it was liable. therefor. In the circumstances disclosed, it evidently appeared to be to the interest of the surety to have the provision with respect to reserving part of the amount earned waived, and likewise with respect to

It follows that the judgment should be reversed, and new trial granted, with costs to appellant to abide the event.

All concur.