Martin v. Whites And Cox

• Decision Date: 17 December 1907
• Citation: 106 S.W. 608,128 Mo.App. 117
• Parties: MARTIN et al., Trustees of the GERMAN LUTHERAN CONGREGATION, etc., Respondents, v. WHITES and COX, Appellants
• Court: Missouri Court of Appeals

106 S.W. 608

128 Mo.App. 117

MARTIN et al., Trustees of the GERMAN LUTHERAN CONGREGATION, etc., Respondents, v. WHITES and COX, Appellants

Court of Appeals of Missouri, St. Louis

December 17, 1907

Appeal from Phelps Circuit Court.--Hon. Robt. Lamar, Special Judge.

AFFIRMED.

Judgment affirmed.

Watson & Holmes for appellants.

The law is that where the special contract pleaded as the foundation of plaintiff's right to recover is one of suretyship wherein plaintiff declares that he performed each and every one of the conditions upon his part, he must show an exact compliance with all of said conditions or terms without departure therefrom, otherwise his proof fails and he cannot recover of the surety. State ex rel. v. Tittman, 134 Mo. 162; Beers v. Wolf, 116 Mo. 179; Obebick v Major, 59 Mo.App. 289; Evans v. Graden, 125 Mo 72; Lumber Co. v. Gates, 89 Mo.App. 206; Eldredge v. Fuhr, 59 Mo.App. 44; Nofsinger v. Hartnett, 84 Mo. 549.

J. B. Harrison for respondents.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

--The suit is on a builder's bond. Plaintiffs recovered, and the defendant surety appeals. On the first day of June, 1904, the plaintiffs, trustees of the German Lutheran Congregation of St. James, Missouri, entered into a contract in writing with one W. Vas Whites, a builder, whereby said Whites bound himself to furnish all of the materials, labor, etc., and erect for plaintiffs a certain house of worship situate at St. James, Missouri. In conjunction with this contract, and of even date therewith Whites executed to plaintiffs a bond conditioned that he would faithfully perform the contract, etc. The defendant, Cox, is surety on the bond. The contractor, Whites, breached the obligation of the building contract by failing to pay certain material bills for which liens were filed against the building and plaintiffs instituted this suit on the bond against Whites the contractor, and Cox, his surety. The matter was referred to Hon. Chas. H. Shubert, a member of the bar, who, after hearing the testimony, found the issues for the plaintiffs and recommended judgment against both defendants. The circuit court overruled defendant's exceptions and entered judgment in accordance with the recommendations of the referee and from this judgment, the defendant surety only appeals.

The facts and arguments thereon as to whether or not this defendant is a principal or surety in the bond, are precisely the same as those in another case now under submission. In this respect, the two cases being identical, it is unnecessary to restate the facts and reasoning thereon which have impelled us to adjudge the defendant Cox to be a surety and not a principal in the bond. The reasoning of the law, which essentially enforced this conclusion, is set forth in the opinion in the case of Reissaus v. Whites, infra, p. 135, 106 S.W. 603.

There are two propositions advanced on behalf of the defendant surety, either of which it is argued, operated his discharge from the obligation assumed in the bond. It is first insisted that the defendant is discharged for the reason plaintiff's agent, without his consent, made certain interlineations in the building contract whereby its provisions were changed to conform to a new agreement made with the builder regarding the time in which the building should be completed, and thereby destroyed the identity of the contract. The rule is well established to the effect that a surety is a favorite of the law, and his liability is not to be extended or varied beyond the strict 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." Therefore any alteration in the terms of the contract by the principal parties thereto, without the consent of the surety, will operate to discharge him therefrom, and of course, the rule applies to the contract of suretyship evinced by a building bond the same as to any other surety. [Miller v. Stewart, 9 Wheat. 680, 6 L.Ed. 189; S. C. 4 Wash. C. C. 26; Ryan v. Morton, 65 Tex. 258; State ex rel. v. Tittmann, 134 Mo. 162, 35 S.W. 579; Evans v. Graden, 125 Mo. 72, 28 S.W. 439; Beers v. Wolf, 116 Mo. 179, 22 S.W. 620; Nofsinger v. Hartnett, 84 Mo. 549; Taylor v. Jeter, 23 Mo. 244; Warden v. Ryan, 37 Mo.App. 466; Killoren v. Meehan, 55 Mo.App. 427; Heim Brew. Co. v. Hazen, 55 Mo.App. 277; Mallory v. Brent, 75 Mo.App. 473; Chapman v. Eneberg, 95 Mo.App. 127, 68 S.W. 974; Swasey v. Doyle, 88 Mo.App. 536; Burnes Est. v. Fidelity, etc., Co., 96 Mo.App. 467, 70 S.W. 518; Eldridge v. Fuhr, 59 Mo.App. 44; Fullerton Lumber Co. v. Gates, 89 Mo.App. 201; The Ashenbroedel Club v. Finlay, 53 Mo.App. 256; Bowman v. Globe Heating Co., 80 Mo.App. 628; Lloyd on Building, sec. 69; 27 Amer. and Eng. Ency. Law (2 Ed.), 494-495; Brandt on Surety-ship (3 Ed.), sec 460.]

The contract which is parcel of the bond, of course, required the building to be completed by August 15, 1904. It appearing that this stipulation could not be complied with, Whites, the contractor, called upon plaintiffs' agent and requested one week more time. Plaintiffs' agent suggested an extension of two weeks instead. The suggestion of two weeks was discussed, and although not then agreed upon, was found to be satisfactory to both parties. On the following day, Mr. Cox, the surety, requested the plaintiffs' agent to grant Whites such additional time as he required, which request was assented to, and in conformity therewith, plaintiffs' agent, without either the contractor or surety being present, and without their knowledge, interlined in the written contract next after the provision requiring the building to be completed August 15th, as follows: "(Altered to August 29th, 1904.)" The argument advanced is that even though the surety requested the plaintiffs' agent to grant Whites such additional time as he might desire, and even though the additional time desired by Whites would expire on August 29th, these facts did not authorize plaintiffs' agent to write into the contract the words, "Altered to August 29th, 1904." It is said, admitting the proper construction to be that the surety requested an extension of time to the contractor, expiring August 29, 1904, he is nevertheless discharged by the act of plaintiffs' agent in altering the contract when he neither requested nor consented to the act of interlineation, for the reason such interlineation destroyed the identity of his contract. The whole argument proceeds upon the idea that defendant should have consented to the alteration in the writing rather than to the extension of time which was the change in the contract. In view of the fact that defendant requested the extension of time and thus voluntarily consented to the modification of his original undertaking to that extent, we are not impressed with the argument that this consent, or in other words, the contract as modified with his consent, is to be defeated for the reason that plaintiff, without express authority from defendant noted the substance of the modification upon the writing. It is true the alteration changed the terms as expressed by the original writing, but it only changed them in conformity to the modified contract as made by the principal parties and consented to by the surety; and while it destroyed the identity of the surety's original contract, it indicated the truth with respect to the identity of the modified contract to which the surety had given his consent. It is the law that when the parties have agreed upon a change in the terms of a contract, as in this case, the contract will not be invalidated by one of the parties, without the knowledge of the other, noting the alteration on the instrument. [See Phillips v. Crips, 108 Iowa 605, 79 N.W. 373; Wardlow v. List, 41 Ohio St. 414; Kane v. Herman (Wis.), 85 N.W. 140; 2 Cyc. Law & Proc., 156.]

2. The second proposition advanced by defendant for a reversal of the judgment predicates upon the fact that the owner paid to the builder certain of the funds due him without certificates of the architect, when the contract provided for payment only upon such certificates. It is argued because of this, the defendant is discharged, for the reason that such payments were made in violation of the terms of the contract. In other words, the payment of these moneys to the contractor by the owner without the certificate of the architect is such a violation or deviation from the express provisions of the contract as to operate a release of the surety who is bound to respond only in accord with the strict terms of his obligation. Now it is certain that the liability of the surety is strictissimi juris and that an alteration or change in the terms of the contract by the principal parties without his consent will operate to release him. This, for the reason the identity of the surety's contract is thereby destroyed and a new and distinct undertaking has been substituted for it by the principal parties. This doctrine is pertinent in those cases where there has been one or more new express or implied agreements between the principal parties by which the terms and stipulations of the principal contract have been added to or deducted from. For an application of the doctrine and cases in point, see Reissaus v. Whites, infra, p. 135, 106 S.W 603; and authorities therein cited. There is a marked distinction however, between a case where the identity of the surety's contract has been destroyed without his consent and a case where there has been merely an immaterial deviation in performance from its terms without any implied or express agreement between the parties adding to or deducting from the original terms. The principle above referred to is entirely without influence...