Duffy v. Buena Vista Ice Co.

• Decision Date: 14 January 1914
• Parties: DUFFY v. BUENA VISTA ICE CO.
• Court: Maryland Court of Appeals

90 A. 53

122 Md. 275

DUFFY v. BUENA VISTA ICE CO.

Court of Appeals of Maryland

January 14, 1914

Appeal from Circuit Court of Baltimore City, in Equity; Henry Duffy Judge.

Action by the Buena Vista Ice Company against Margaret T. Duffy. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

J Cookman Boyd, of Baltimore (Peter J. Campbell, of Baltimore on the brief), for appellant. Robert Biggs and William S Bryan, Jr., both of Baltimore, for appellee.

URNER J.

In March, 1902, William J. Duffy entered into a written contract with the Buena Vista Ice Company by which he purchased outright from the company its entire product of ice for that season then or thereafter stored in its icehouses at Buena Vista, Md. The purchase price was $1.10 per ton, f. o. b. cars at Buena Vista, and it was stipulated that payment should be made as follows: "For all ice shipped between the 1st and 15th of each month on the 25th of said month; for all ice shipped between the 15th and 30th of each month on the 10th of the following month." It was further agreed that the purchaser should execute and deliver to the company his bond in the sum of $5,000, with approved sureties, conditioned for the faithful performance of the contract and the prompt payment of the purchase money. In pursuance of this provision, a bond to the company was executed by Mr. Duffy and by his wife, the present appellant, as surety, conditioned for the payment of "the purchase price for said ice when and as the said payments become due under the terms of the agreement," to which the bond explicitly referred. In connection with this obligation, Mrs. Duffy and her husband conveyed certain real estate of the wife to Robert Biggs, Esq., by a deed which, while absolute in form, was shown by a separate instrument to be intended as security for the performance by Mr. Duffy of the terms and conditions of his contract with the Buena Vista Ice Company. The deliveries of the ice purchased under the agreement began on March 14 and continued until October 25, 1901. They appear to have been made upon current orders from Mr. Duffy, and to have aggregated 8,637 and a fraction tons during the period indicated. These shipments exhausted five of the eight houses in which the ice was stored, and, as the transaction was proving unprofitable to Mr. Duffy, the company verbally agreed, at his request, to "release" him from his purchase as to the remainder. This agreement was made in October, 1902, about the time of the last delivery. The amount of purchase money represented by the shipments mentioned aggregated $9,403.85 upon which payments were made which left owing to the company a balance of $2,722.50. A decree for that sum was entered by the court below in a proceeding for the enforcement of the lien created by the deed given by the appellant as security for the performance of her husband's contract.

The question of first importance in the case is raised by the appellant's contention that her liability as surety was discharged by the arrangement as to the undelivered ice to which we have referred.

In Booth v. Irving Nat. Exch. Bank, 116 Md. 672, 82 A. 653, the statement of Mr. Justice Story as to a surety's responsibility was quoted with approval from the opinion in Miller v. Stewart, 9 Wheat. 680, 6 L.Ed. 189, as follows: "Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended, by implication, beyond the terms of his contract. To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and, if he does not assent to any variation of it, and a variation is made, it is fatal." In view of the rule thus defined, and it being apparent that the surety in this instance did not consent to any change in the contract, the only inquiry to be made as to this feature of the case is whether there has been any alteration, within the meaning of the rule, in the terms of the agreement upon which the liability here charged against the appellant is predicated. If such a modification was, in fact, made, it must be held to have operated as a release of the surety, without regard to the question as to whether its tendency would be to increase or to lessen the burden of her obligation.

The suretyship in this case was for the payment of the purchase price of the ice sold the principal "when and as" the periodical installments became due, as prescribed by the agreement. The liability of the surety matured as to each installment at the time stipulated for its payment. The vendor company had made...