Anderson v. Bellinger

• Citation: 87 Ala. 334,6 So. 82
• Parties: ANDERSON ET AL. v. BELLINGER ET AL.
• Decision Date: 01 May 1889
• Court: Supreme Court of Alabama

6 So. 82

87 Ala. 334

ANDERSON ET AL. v. BELLINGER ET AL.

Supreme Court of Alabama

May 1, 1889

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

Bellinger & Ralls sued in detinue one George Lancaster for some cotton. James Lancaster instituted a claim suit for the said cotton and gave a claim bond, with the appellants Anderson, Reeves and Aycock as sureties on the said bond, he being the principal. The cotton was delivered to the said James Lancaster by the sheriff, and was disposed of by him. On the trial of the claim suit the plaintiffs, appellees here obtained a judgment against the claimant; and he failing to return the property as required by law, and as stipulated in the bond, this present suit was instituted by the appellees against the bondsmen. Upon the trial of the case the defendants Anderson and Reeves pleaded (1) the general issue and also filed a sworn plea (No. 2) to the effect that after the bond had been executed by Lancaster and themselves, and accepted by the sheriff, he, (the sheriff,) without their knowledge consent, procured the defendant Aycock to sign the bond, thereby altering the same; and also another plea, (No. 3,) that the bond was executed by them, delivered and received by the sheriff on Sunday. The defendant Aycock filed a plea alleging fraud, in that the sheriff represented to him that Anderson had requested him (Aycock) to sign the bond, when, in fact, Anderson had not so requested him to sign the said bond. The plaintiffs demurred to these several pleas, on the ground that the alteration alleged in the plea (No. 2) was immaterial, and in no way prejudiced the rights of the defendants; and to plea No. 3, that "there is no statute in this state forbidding the acceptance and approval of claim bonds by the sheriff on Sunday;" and to plea No. 4, because the plea does not allege that the plaintiffs had any knowledge of the facts set up in said plea, or took any part therein, or had any connection therewith. The court sustained the demurrers, except the first ground to the plea (No. 2) of alteration, which was overruled. There was verdict and judgment for the plaintiffs, and the defendants prosecute this appeal, and assign the rulings of the court on the demurrers as error.

W. L. Whitlock, J. H. Disque, and G. D. Motley, for appellants.

Dortch & Martin, for appellees.

MCCLELLAN J.

The contract of suretyship must be strictly construed in favor of the surety. His obligation is voluntary, without any consideration moving to him, without benefit to him, entered into for the accommodation of his principal, and generally, also, for that of the obligee; and courts see to it that his liabilities thus incurred are not enlarged beyond the strict letter of his undertaking. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. His contract cannot be changed in any respect. Whether an alteration is or is not to his benefit is not open to inquiry. "He has a right to stand upon the very terms of his contract," and if a variation is made which extends its liability "to another person, or to any other subject, or for any other period of time than such as may be included in its words," and he do not assent to it, such variation is fatal to his obligation, whether he is injured thereby or not. Miller v. Stewart, 9 Wheat. 681; Taylor v. Johnson, 17 Ga. 521; Gardner v. Walsh, 5 El. & Bl. 89; Bowers v. Briggs, 20 Ind. 139; Henry v. Coats, 17 Ind. 161; Wallace v. Jewell, 21 Ohio St. 163; Dickerman v. Miner, 43 Iowa, 508; City Council of Montgomery v. Hughes, 65 Ala. 204.

Variations of the contract of suretyship which operate the discharge of the surety must, however, be such as are material, and change the legal import of the instrument, assuming the genuineness of the paper thus modified. Interlineations and changes may be made in the paper which evidences the liability, or in the words which express it, without destroying the validity of the contract, provided such modifications do not go beyond the mere form of the undertaking, or beyond the expression of the obligation which the law ascribes to it, in the absence of such expression, by implication. But if the alterations exceed these limits, and change the real meaning of the undertaking which the parties have entered into, whether presumptively to the detriment or advantage of the surety, and whether the effect is to add to or take from the liability by the introduction of additional parties or otherwise, the surety is discharged. U.S. v. Tillotson, 1 Paine, 305; Taylor v. Johnson, 17 Ga. 521; Oneale v. Long, 4 Cranch, 60; People v. Brown, 2 Doug. (Mich.) 9; Bank v. Lane, 8 Ohio St. 405.

There is another important limitation on the general doctrine which we have been considering, applicable to contracts generally, and exerting its influence on contracts of suretyship as well as all others. It is now well settled in this country, though the contrary rule formerly prevailed, and does yet to a large extent in England, that erasures, interlineations, spoliations, and changes made in and of contracts by strangers to them, however material abstractly considered, are in legal contemplation wholly immaterial and ineffective to give to the instrument any other or different meaning or operation than that which attached to it before such intermeddling. Brown v. Jones, 3 Port. (Ala.) 422; Davis v. Carlisle, 6 Ala. 709; 1 Greenl. Ev.§§ 564-568; Byles, Bills, 323, and notes; 2 Pars. Cont. 716 et seq.

In this case it is averred by the defendants Anderson and Reeves that after the bond had been signed by them and their principal it was...