Wilson v. Whitmore

The learned trial justice appears to have dismissed the plaintiff’s complaint solely upon the ground that the bond, upon which this action is brought, furnished the plaintiff with no cause of action against the sureties Webber and Trevor, who are the only parties defending. It is true that this instrument runs to the city, and that the plaintiff is neither a party to it nor mentioned in it, but the action was brought and is sought to be maintáined upon the theory that the bond, nevertheless, does indemnify him for the purchase-

As has already been suggested, the instrument does, in general terms, run to the city, but why should it indemnify the city for materials which are not furnished by the municipality, and for which it could, under no conceivable circumstances, be compelled to pay ? It is true that what is-termed the “ Municipal Lien Law ” furnishes materialmen with an easy method by which moneys due upon a contract for municipal improvements can be reached and applied in payment of their claims (Laws of 1878, chap. 315, § 1); but, in availing himself of its provisions, the materialman does not prejudice the municipality in any sense, and, therefore, it is difficult to see how the latter obtains any additional security or protection by having such a provision incorporated into the bond; and if this be so, then the bond must be construed to mean precisely what it says, viz., that the obligors therein named shall pay, or cause to be paid, the vendors and not the city “ for all materials furnished in or about said improvement,” thereby furnishing the direct indemnity

Having reached the conclusion that the bond is sufficiently comprehensive to embrace the plaintiff’s claim, and that it is sanctioned by legislative enactment, it remains to - be determined whether the Legislature has exceeded its power in its effort to furnish a remedy which had no existence at -common law.

So far as the city of Lockport is concerned there can, of course, be no question as to the right and duty of the law-making department of the State to incorporate into the charter, which is its fundamental law, such provisions as will adequately protect the municipality itself as a minor division of the State; but I think it may go much further than that and provide a means by which the individual members of the municipality and all other persons may be protected in their rights. The very “ Municipal Lien Law,” to-which reference has already been made, is an instance in point where to a certain class of men is furnished an easy and inexpensive method for the recovery of their just claims, which was not available to them prior to its enactment, and the means provided by the Lockport charter is simply more direct and easy of attainment. Perhaps the most radical legislative innovation of common-law rights is what is known as the “ Civil Damage Act ” (Chap. 646 of the Laws of 1873), which creates a right of action never before heard of in this State, and yet the Court of Appeals had no difficulty in reaching the conclusion that its enactment was a valid exercise of legislative power, and in the consideration of questions arising under that act took occasion to say that “ the Legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies and fasten responsibility for injuries upon persons against whom the common law gives no remedy.” (Opinion per Andrews, J., in Bertholf v. O'Reilly, 74 N. Y. 509 -524.)

It would seem, therefore, that when it incorporated the provisions of section 207 into the charter of the city of Lockport, the Legislature not only did not transcend the limits of its authority, but that it provided an easy, suitable and inexpensive method by

It is insisted, however, that even if the view here indicated be adopted as the law of this case, there can be no recovery, because no breach of the defendants’ undertaking is alleged or proved; and, in support of this claim, the attention of the court is directed to the fact that the recital in the bond makes no reference to any covenant to pay for material, the contention being that the recital contains, the full measure of the specific engagement of the sureties which cannot be extended by construction, and the case of the Nat. Mech. Bkg. Assn. v. Conkling ( 90 N. Y. 116 ) is cited to sustain this contention. But this case, I think, hardly comes up to the defendants?’ present requirements, as a little examination will make plain. Judge Earl, after stating in his opinion that he arrives at his conclusion with some doubt and hesitation, rests it upon the fact that the bond in question, which was conditioned 'for the faithful performance of the duties of bookkeeper by one of the obligors, simply recited that he had been appointed to the office of bookkeeper and! that he had accepted the office and consented to perform the duties thereof, while the alleged breach occurred after he had been promoted to the position of receiving teller, and says that the former position was the one which was brought to the attention of the sureties and the one which they had in mind when they executed the bond. In other words, the undertaking was for the faithful performance of the duties of a specified office and not for those of another and more responsible one, and the case was, therefore, one where general words subsequently used should be controlled and limited by the recital.

In the case under consideration, the recital stated that whereas the above-bounden Whitmore & Sheldon have entered into a contract with the city of Lockport, whereby they have, “ among other things, covenanted and agreed to grade, curve and pave Niagara street,” etc., and then goes on to state in the condition what the other parts of the agreement are.' So it can hardly be said that the sureties were informed as to the full measure and extent of their liability by a reference to the recital alone. To ascertain that they were compelled to examine and give effect to the instrument in its

But it is further urged that, inasmuch as the plaintiff sold his sand to the principal obligors upon a credit of thirty days, the sureties are released from any liability therefor, for the reason that no term of credit was embraced in the contract. It is unquestionably a well-settled rule of law that a surety is entitled to a somewhat rigid construction of his contract. But before this rule is applied his contract is subject to the same construction as any other contract, in order to ascertain and give effect to the intent of the parties, and it is not until this is ascertained that its language is to be regarded as strictissimi juris. (Belloni v. Freeborn, 63 N. Y. 383 ; People v. Backus, 117 id. 196.) In attempting to discover the intention of the parties to the bond in suit, the circumstances surrounding its execution may be inquired into. These have already been adverted to, and it is only necessary, by way of recapitulation^ to suggest, that in the fulfillment of their contract it was necessary 'that the principal obligors should employ laborers and purchase materials; and the sureties covenanted that the laborers employed and the persons of whom the materials were purchased should be paid ■ — ■ not that they should be paid in any particular manner, or at any specified time, but that payment should be made in the usual and customary way. It does not appear how the laborers were, by their contract of employment, to have been paid, but it is safe to assume that it was at the end of each week, and yet, if they were employed by the day, as they doubtless were, they became entitled to their pay at the close of each day, and deferring payment until the close of each week would, if the defendants’ contention is to obtain, be such an extension of credit as would defeat any right of action upon the bond. If, in purchasing the sand in question, the vendees had given and the plaintiff had accepted their note for thirty days, I could see more force to the defendants’ argument, for in that case the plaintiff would have accepted a new and independent security, which would indicate that he elected not to rely upon that which was furnished by the bond, but the deferring of payment for a few days seems more in the nature of an indulgence than the extension of a credit, not within the contemplation of the contract. This question does not appear to have been pressed

For the reasons stated, we think the learned trial justice erred in withdrawing the case from the jury, in consequence of which a new trial should be granted, with costs to abide the event.

Lewis, Bradley and Ward, JJ., concurred.

Motion for a new trial granted, costs to abide the event.