Chicago Bonding & Surety Co. v. Augusta-Savannah Nav. Co.

U.S. Court of Appeals for the Seventh Circuit
Chicago Bonding & Surety Co. v. Augusta-Savannah Nav. Co., 250 F. 616 (7th Cir. 1918)
162 C.C.A. 632; 1918 U.S. App. LEXIS 1943

Chicago Bonding & Surety Co. v. Augusta-Savannah Nav. Co.

Opinion of the Court

EVAN A. EVANS, Circuit Judge

(after stating the facts as above).

[1] Defendant contends that the second boat, being partly constructed, could have been completed for an additional expenditure ot $lü,UUU or $15,000, and urges that its liability is limited to the actual amount required to complete the construction of the barge. While plaintiff’s duty is to use reasonable care to keep the loss to the minimum sum in case of a breached contract of this character, it was not required to embark in an unknown or unfamiliar field of industry, involved in uncertainty as to outcome or doubt as to its ability to satisfactorily complete such a structure. United States v. U. S. Fidelity & Guaranty Co., 236 U. S. 512, 35 Sup. Ct. 298, 59 L. Ed. 696. The right to complete the barge, or to sublet the contract to another builder,'and thereby lessen the loss if any, was reserved-by the defendant in its bond. Having declined to exercise this option to proceed with the construction of the barge, for sufficient reasons no doubt, it cannot complain because the plaintiff also declined to take such a chance.

[2] We find nothing in the testimony that indicates plaintiff acted unreasonably in refusing to undertake the completion of the barge upon the boat company’s default. Under the circumstances of this case, the correct measure of plaintiff’s damages against the surety company is one-half the amount that plaintiff advanced the boat company, not exceeding the contract price of the boat, nor the sum fixed in the bond, together with interest from the date the surety company received notices f the breach of the contract. United States v. U. S. Fidelity & Guaranty Co., supra. This is the rule the learned trial court applied.

[3] Defendant, among other defenses, pleaded specially that its con*618sent to the modification of the original contract was secured through false statements made by thq plaintiff as to the amount of money required to complete the construction of the barges, and that such consent was therefore inoperative. The only evidence offered in support of this defense was a statement of approximate expenses required to complete the barge, and a letter written subsequently by plaintiff, wherein a statement appeared that this estimate was too low. Assuming that the preliminary estimate was made and presented by the plaintiff to the. surety company (an assumption which does violence to the testimony), we find nothing therefrom that would create a suspicion of fraud, much less establish fraud on plaintiff’s part. Nothing appears in the testimony offered or in the testimony received by the court that would sustain defendant’s charge of fraud, or even justify the interposition of the defense in the pleading. The estimated cost of a structure very seldom tallies with the actual cost. Rapid changes in price of material, cost of labor, and unforeseen delays qiake estimates at best very undependable. In this case, where the barges were to be knocked down and transported from Muskegon, Mich., to Savannah, Ga., to be again erected, the uncertainties were multiplied. The evidence does not even suggest bad faith upon the plaintiff’s part, and amply justifies the conclusion that the estimates were prepared by the boat company, and not by the plaintiff.

It is unnecessary for us to consider defendant’s further contention that the court erred in not allowing it to amend its special plea. We have assumed that the original plea sufficiently raised the issue in support of which this testimony was offered.

Judgment is affirmed.

Reference

Full Case Name
CHICAGO BONDING & SURETY CO. v. AUGUSTA-SAVANNAH NAV. CO.
Cited By
1 case
Status
Published