Tide Water Oil Co. v. Globe Indemnity Co.

Second Circuit

Tide Water Oil Co. v. Globe Indemnity Co.

238 F. 157, 151 C.C.A. 233, 1916 U.S. App. LEXIS 1327

CourtCourt of Appeals for the Second Circuit

DecidedNovember 14, 1916

DocketNo. 38

StatusPublished

Cited by5 cases

This text of 238 F. 157 (Tide Water Oil Co. v. Globe Indemnity Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tide Water Oil Co. v. Globe Indemnity Co., 238 F. 157, 151 C.C.A. 233, 1916 U.S. App. LEXIS 1327 (2d Cir. 1916).

Pincite

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). In United States v. Freel, 99 Fed. 237, 39 C. C. A. 491, affirmed 186 U. S. 309, 22 Sup. Ct. 875, 46 L. Ed. 1177, we considered the effect of a change of location far less radical than is here shown. That action was on a bond given to secure performance of a contract existing when bond given, and specifically providing for “changes, alterations, or modifications in the plans,” etc. The case was heard on demurrer, and Wallace, J., pointed out that the only question presented was whether the principal contract authorized the change actually made. The change here shown is even more radical than that discussed in the case cited. It cannot fairly be called a “variation,” and the Case of Freel is plainly applicable.

Eater decisions have not affected the authority of that decision. It was specifically approved in Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 348. In United States v. McMullen, 222 U. S. 460, 32 Sup. Ct. 128, 56 L. Ed. 269, Holmes, J., pointed out that sureties on a bond have no right to insist upon a “sacrosanct prohibition of change. * * * The law has no objection to [change] if [sureties] assent. Whether they have done so or not is simply a question of construction and good sense, taking words and circumstances into account.”

This language announces no new rule; questions of construction are not for the jury; and it remains the duty of the'court to infer from the evidence, if uncontradicted, whether the surety consented or assented to a substantial change of contract. We cannot doubt that no assent [159]*159can be inferred or presumed in this case. Nor do we doubt that the change of location materially contributed to the fall of the building, because the new site was marshy; but decision is based only on the plain fact that a new and substantially different agreement was made between the contracting parties without the surety’s consent or knowledge.

Judgment affirmed, with costs.

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HOUGH, Circuit Judge

(after stating the facts as above). In United States v. Freel, 99 Fed. 237, 39 C. C. A. 491, affirmed 186 U. S. 309, 22 Sup. Ct. 875, 46 L. Ed. 1177, we considered the effect of a change of location far less radical than is here shown. That action was on a bond given to secure performance of a contract existing when bond given, and specifically providing for “changes, alterations, or modifications in the plans,” etc. The case was heard on demurrer, and Wallace, J., pointed out that the only question presented was whether the principal contract authorized the change actually made. The change here shown is even more radical than that discussed in the case cited. It cannot fairly be called a “variation,” and the Case of Freel is plainly applicable.

Eater decisions have not affected the authority of that decision. It was specifically approved in Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, 24 Sup. Ct. 142, 48 L. Ed. 348. In United States v. McMullen, 222 U. S. 460, 32 Sup. Ct. 128, 56 L. Ed. 269, Holmes, J., pointed out that sureties on a bond have no right to insist upon a “sacrosanct prohibition of change. * * * The law has no objection to [change] if [sureties] assent. Whether they have done so or not is simply a question of construction and good sense, taking words and circumstances into account.”

This language announces no new rule; questions of construction are not for the jury; and it remains the duty of the'court to infer from the evidence, if uncontradicted, whether the surety consented or assented to a substantial change of contract. We cannot doubt that no assent [159]*159can be inferred or presumed in this case. Nor do we doubt that the change of location materially contributed to the fall of the building, because the new site was marshy; but decision is based only on the plain fact that a new and substantially different agreement was made between the contracting parties without the surety’s consent or knowledge.

Judgment affirmed, with costs.

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238 F. 157, 151 C.C.A. 233, 1916 U.S. App. LEXIS 1327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tide-water-oil-co-v-globe-indemnity-co-ca2-1916.

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