On appeal from the Supreme Court, Monmouth County Circuit.
For the appellants, David T. Wilentz.
For the respondent, John L. Ridley.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. The department of plant and structures of the city of New York contracted with the Charles Meads Company for the construction of the Fresh Kills bridge over Richmond creek.
Part of this work was sublet by the Meads company to one Otto Felton, Jr., trading as Coast Construction Company, and he, in turn, sublet a portion of the work under his contract to the defendants-appellants for $49,373. A bond was required of the appellants and upon application by them to the respondent it became surety thereon and the appellants executed to the respondent an indemnity agreement.
The Coast Construction Company claiming that appellants had defaulted in the work under their contract, took over the work, and the respondent company, as surety, paid $17,000 because thereof and was put to an expense of $400 for services of an engineer.
Action was brought by the respondent against the appellants under the aforesaid indemnity agreement to recover such damages or outlay and a trial of the issue resulted in a judgment of $17,400 and costs in favor of the respondent.
From such judgment the defendants below appeal and file nineteen grounds of appeal.
Such of these as are argued are urged under five points.
1. That the trial court erred in refusing to charge appellants' request as follows:
"The burden of the proof is on the plaintiff insurance company to show by a fair preponderance of the evidence, that Wickburg and Son had defaulted in their contract with the Coast Construction Company and if the plaintiff insurance company has not proven the default, then Wickburg and Son is not responsible for any sum paid out by the plaintiff insurance company by reason of any alleged default."
It appears that appellants insist that the error is that the trial court did not charge that the burden of establishing the default or breach was upon the plaintiff. It is true that the court in its instructions did not use the language "the burden of proof is upon the plaintiff, but we think that the following
excerpts from the charge could have conveyed to the jury no other thought, namely: "I am allowing you to consider under a fair preponderance of all the proof in the case, whether or not they did breach it, and whether they were able to carry on * * *" "if you find under a fair preponderance of all the proof in the case * * *."
If we are to understand that it is insisted that the burden was the plaintiff's to establish the breach by a fair preponderance of the proofs offered by it (which is not clear) our answer shall have to be that this is not so and that the instruction given, in that respect, was correct.
2. That there was error in refusing to nonsuit and direct a verdict in favor of appellants.
Both refused motions were based upon the ground that under the contract between the Coast Construction Company and appellants no default could be worked or declared except upon the approval of the architect and that such approval had not been shown.
But we think there was no error in the disposal of these motions, and we reach that conclusion for two reasons: (a) Because an examination of the contract in question will show that two distinct defaults appear to be contemplated; the one temporary in not providing a sufficiency of workmen and materials or to properly prosecute the work the contractor, upon notice with the approval of the architect, may supply such deficiency and the other, permanent, as where such "refusal, neglect or failure is sufficient ground for such action, the contractor shall also be at liberty to terminate the employment of the ...