Crymes v. Gaul

117 S.E. 403, 124 S.C. 361, 1922 S.C. LEXIS 270

• Court: Supreme Court of South Carolina
• Decided: September 1, 1922
• Docket: 11005
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

The plaintiff,. Dr. Crymes, desired to remodel his residence in the City of Greenville, and let out the contract to the defendant Gaul Construction Company. They entered into a written contract with the defendant Massachusetts Bonding & Insurance Company as surety. The plaintiff agreed to take out insurance for the benefit of himself and the construction company. The plaintiff took out the insurance in the sum of $6,000. Before the work was completed, the house was burned. The plaintiff collected the insttrance, demanded of the construction company that they rebuild, and offered the proceeds of the insurance policy to complete the work. The construction company refused to do so, claiming that they had agreed only to remodel the house, and, as it has been destroyed by fire, it was impossibl to do so. The bond was for $4,000.

At the conclusion of the plaintiff’s testimony, the defendant moved for a nonsuit, which was refused. At the conclusion of all the testimony, the pl'aintiff moved for a direction of verdict for the full amount-of the bond. This was also refused. The jury found for the plaintiff, $2,650. From the judgment entered on this verdict, both parties appealed. There are many exceptions, but the parties have consolidated the exceptions.

The defendants’ points are: (1) “The destruction of the old building put an end to the contract.” This point cannot be sustained. This point has already been decided in 117 S. C., 20 and 21; 108 S. E., 175,176:

“The demurrer admits the allegations of the complaint to be true, and the contract was before Judge DeVore. The complaint alleges in paragraph 10 that ‘The contractors shall be answerable for, restore, and make good all injurious damages, re-erections, and repairs occasioned or rendered necessary by defective material, bad workmanship, fire, and trespass or otherwise, previous to the completion and delivery of the same.’ The complaint, contract, and specifications show, that the- contractors assumed responsibility for the whole job. The allegations of the complaint admitted to be true by the demurrer set forth fully the things embraced in the undertaking laid before the contractors. They were to get the contractors. They were to get the building as it stood, so much money for their undertaking and job, and the work was to be completed the following August. The contractors were to own all of the old building, except what was stipulated to be retained by the owner, to wit: ‘Old material torn out and not used in new work.’ ”

(2)“The contractors were not insurers of any part of the work, other than their own, and hence were not bound to restore the old building.” This point is covered by what has already been said. The construction company agreed to be responsible for fire, with the insurance. It was insured, and they were offered the insurance money to carry out their contract. This was refused.

(3) “If the owner sustained any loss, it was due to his own failure to take out sufficient insurance.” Insurance is not taken out for the full value. The plaintiff had the right to protection for the full value while his building was in the possession and control of the contractors, and he provided for it in the policy of insurance and the contract with the construction company. This point cannot be sustained.

(4) “Measure and amount of damages.” The measure of damages was correctly charged, the amount was a question for the jury.

Plaintiff appeals from the refusal of the Judge to direct a verdict for full amount of the bond. The amount of the loss was a question for the jury, and was properly submitted to them. There was no error here.

The judgment is affirmed.

Mr. Chiee Justice Gary concurs. Mr. Justice Marión concurs in result. Mr. Justice Cothran disqualified.