Farrar v. Kramer

• Decision Date: 22 January 1878
• Citation: 5 Mo.App. 167
• Parties: BENJAMIN FARRAR, Respondent, v. ABRAHAM KRAMER ET AL., Appellants.
• Court: Missouri Court of Appeals

5 Mo.App. 167

BENJAMIN FARRAR, Respondent,

v.ABRAHAM KRAMER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 22, 1878.

1. A guarantor is released when there is any material change made in the contract, to which he does not assent.

2. Agency cannot be proved by showing the declarations of the alleged agent.

3. Premises were leased in writing, possession to be given on a day named. It was stipulated that, at the expiration of the term, the lessee should deliver up the premises in as good condition as when received, wear and tear and accidents excepted. Contemporaneously with the lease, it was agreed between the lessor and lessee that the building should be changed and remodelled by the lessor, at an expense of $1,500, possession to be given upon the completion of the improvements. Held, that, in the absence of proof of knowledge of this contemporaneous agreement, the guarantor on the lease was released.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

R. E. ROMBAUER, for appellants: A change of the contract by the principals, in any particular, releases the guarantor, if made without his consent.-- Whitcher v. Hall, 5 Barn. & Cress. 269; Taylor v. Johnson, 17 Ga. 534; Rowan v. Sharp Rifle Co., 33 Conn. 22; Blair v. Insurance Co., 10 Mo. 566; Morgan v. Martien, 32 Mo. 443; Ide v. Churchill, 14 Ohio St. 383; Miller v. Stewart, 9 Wheat. 702. The burden is upon those seeking to enforce the obligation to show such assent.-- United States v. Hillegras, 3 Wash. C. Ct. 75; Carpenter v. Devon, 6 Ala. (N. S.) 726; Stowell v. Goodnow, 31 Me. 540.

T. Z. BLAKEMAN, for respondent, cited: De Colyar on Guar. & Sur. 395; Harrison v. Seymour, 1 Law Rep.; Miller v. Stewart, 9 Wheat. 680; Davis S. M. Co. v. Jones, 61 Mo. 411; Taylor's L. & T., secs. 15, 176.

BAKEWELL, J., delivered the opinion of the court.

This action is upon a guaranty executed by defendants, and is brought to recover seven months' rent due by one Loeb to plaintiff, from May to December, 1875, under the provisions of the lease upon which the contract of guaranty was indorsed. The cause was tried without a jury. There was a finding and judgment for plaintiff; and defendants appeal.

The lease in question is under seal, dated Feb. 10, 1874; the premises are a four-story brick building; the term is six years, from April 1, 1874; the rent, payable monthly in advance, is $200 for the first year, $225 a year for the next four years, and $250 for the sixth and last year. The lease contains a covenant for the surrender of the premises, “at the expiration of the lease or the determination of the term,” in as good condition as when received, excepting natural wear and tear and accidents, and provides that the building is to be used only as a hotel, bar, or restaurant. Contemporaneously with the execution of this lease, defendants executed an instrument under seal, written on the back of the lease, whereby they gurantee the performance of all the covenants in the lease during the first two years of the term only. On the same day, and as a part of the contract of lease between Farrar and Loeb, there was executed between the lessor and lessee a separate instrument, which provides that the lessor shall complete the building mentioned in the lease, ready for occupancy, in accordance with plans, specifications, and lessor's contract with certain named builders; that one Kolling is to superintend the work and accept it when completed; that Loeb has agreed to the plans and specifications, and will accept the building whenever the superintendent receives the same from the contractors as completed; and that rent shall begin to run only from the time when the superintendent shall accept the premises and exclusive possession shall have been delivered to Loeb.

Defendants, in their answer, claim to be discharged from all obligations under their guaranty, on the ground that this separate instrument is a materal variation of the original contract, and that Loeb accepted the altered building without their knowledge or consent. The reply avers that the execution of the separate agreement and the making of the alteration was all done with the consent of the sureties, and denies that the alterations were material; and denies the allegations as to the time of their completion, and as to the time at which Loeb took possession.

At the close of plaintiff's case, an instruction in the nature of a demurrer to the evidence was overruled. It is not necessary to set out the instructions given and refused. It is apparent from these instructions that the court found either that the liabilities of Loeb under his contract were not materially changed by the second writing, or that the change was known to defendants before they executed the contract of guaranty.

That the liability of a surety depends upon the identity of the contract; that it is strictissimi juris, in the sense that it cannot be extended de re ad rem or de tempore ad tempus, are...