Barclay v. Deckerhoof

• Decision Date: 03 October 1892
• Parties: Barclay, Appellant, <I>v.</I> Deckerhoof et al.
• Court: Pennsylvania Supreme Court

151 Pa. 374

Barclay, Appellant,

v. Deckerhoof et al.

Supreme Court of Pennsylvania.

May 9, 1892.

October 3, 1892.

Argued May 9, 1892.

Appeal, No. 189, July T., 1891, by plaintiff, John J. Barclay, from judgment of C. P. Bedford Co., Feb. T., 1890, No. 240, on verdict for defendants, Simon Deckerhoof et al.

Before PAXSON, C. J., GREEN, McCOLLUM, MITCHELL and HEYDRICK, JJ.

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John M. Reynolds, for appellant.—A submission to the jury of a question without evidence to support it is error: Selser v. Roberts, 105 Pa. 242.

Alexander King, with him John H. Jordan, for appellees.— The evidence as to the change of contract was conflicting and properly submitted to the jury.

OPINION BY MR. JUSTICE McCOLLUM, October 3, 1892.

That a material alteration of a contract without the consent of the sureties will discharge them is a principle which is not disputed. But the appellant contends that the sureties in this case are not discharged, because, first, the agreement between him and Deckerhoof on the 26th of September, 1888, is not an alteration of the contract of June 19, 1888, for the due performance of which by Deckerhoof they became sureties; and, second, if it was an alteration of that contract it was made by the architect in the proper exercise of the powers conferred upon him by the parties with the knowledge and approval of the sureties. We think the first contention is sound and that the second is not. The agreement of September 26th was in writing, indorsed on the contract of June 19th and signed by the appellant and Deckerhoof. It was their act. It provided for work additional to that called for by the former contract and fixed the compensation to be paid therefor. It was a separate and independent agreement. It did not expressly or by any fair implication alter the terms of the preceding contract or affect in the slightest degree the rights and duties of the parties thereunder. The sureties were bound for the construction of the building in accordance with the plans and specifications of that contract and there was no attempt or intent to enlarge their obligation by the subsequent agreement between the owner and contractor. It did not change the work for which the sureties were bound, or the price to be paid for it. As there was no ambiguity in this agreement its construction was for the court, and error was committed in allowing the jury to...