Pickard v. Shantz

Citation70 Miss. 381,12 So. 544
CourtUnited States State Supreme Court of Mississippi
Decision Date30 January 1893
PartiesS. PICARD v. E. SHANTZ

FROM the circuit court of Harrison county, HON. S. H. TERRAL Judge.

Appellee Mrs. Shantz, and one Collins entered into a written contract by which the latter agreed to build for her a house for $ 1,000, she agreeing to make payments on installments as the work progressed, the last payment of $ 250 to be made when the building was completed. Appellee required security for the faithful performance of the contract, and appellant Picard, by written instrument, became "surety to the amount of $ 250 that Collins would fill his contract for the building of the house according to the plans and specifications." During the progress of the work Collins, without the knowledge of Picard, was paid somewhat more than the installments called for by the contract, and after the aggregate payments to him amounted to $ 925, he abandoned the work, and Mrs. Shantz was compelled, in completing her house, to incur expense as stated in the opinion. She has brought this action against Collins and Picard, the surety, demanding of them the sum of $ 250, the amount claimed to have been expended by her in finishing the house.

There was some evidence tending to show that Collins had procured the last payment to be anticipated by falsely representing that he needed it to pay freight on certain building material.

On the trial the court instructed for plaintiff that if appellee was compelled by Collins' abandonment of the work to expend $ 200 in completing the house, she was entitled to recover said sum. An instruction asked by defendant, Picard, that he was released as surety by the act of the owner in anticipating payments, was refused. Plaintiff had a verdict for $ 215, $ 26.90 of which was remitted by her, and judgment entered for $ 188.10. Motion for new trial overruled, and defendant, Picard, appeals.

Judgment reversed and cause remanded.

W. A. White, for appellant.

A creditor must not do any act which increases the hazard of the surety (Brandt on Suretyship, § 261; Johnson v. Planters' Bank, 4 Smed. & M., 171); nor vary the contract (Brandt, § 330; 2 Wall., 219); even though the variation is for the surety's benefit (Brandt, § 336; 9 Am. & Eng. Enc. L., 83, note 1). A surety on a builder's contract is discharged if the owner pays the principal faster than the contract provides. Brandt, § 345; 1 Lawson's Rights, Rem. & Pr., § 2484.

By the judgment in this case, plaintiff not only recovered the amount lost--i. e., the total cost of the house in excess of the contract price--but has made a clear profit of $ 113.10, as a simple calculation will show.

W. H. Maybin and W. G. Evans, Jr., for appellee.

In any view of the evidence, plaintiff has expended $ 75 more than the contract price. To this extent, if to no more, the contract has been broken, and, for this, appellant is, beyond doubt, liable. If this is held a just measure of damages, appellant will here enter the proper remittitur.

Picard is liable for the amount lost by plaintiff, because Collins procured the payments to be anticipated by his own fraudulent representations. The surety cannot escape by setting up the fraud of his principal for whom he has vouched. See Bank v. Neeley, 7 How., 80; Montgomery v. Kellogg, 43 Miss. 486. Wherever the principal...

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25 cases
  • R. T. Clark & Co. v. Miller, State Revenue Agent
    • United States
    • Mississippi Supreme Court
    • May 20, 1929
    ... ... 251] ... overpayment. Overpayments do not render a surety liable; they ... discharge ... Picard ... v. Shantz, 70 Miss. 381 ... To ... state the rule somewhat otherwise, bonds for performance are ... not liable for moneys improperly paid ... ...
  • United States Fidelity & Guaranty Co. v. Parsons, 25685
    • United States
    • Mississippi Supreme Court
    • March 21, 1927
    ...of the cost of materials. This was a material breach. This question appears to have been conclusively settled by our court in Picard v. Shants, 70 Miss. 381. above authority from our own court is conclusive, but we might add that it is in harmony with an unbroken line of decisions from the ......
  • Canal Bank & Trust Co. v. Brewer
    • United States
    • Mississippi Supreme Court
    • June 6, 1927
    ...Union Bank of Maryland v. Edward, 1 Gill & J. 363; First Nat'l Bank v. Powell, 149 S.W. 1096; Barkwell v. Swann, 69 Miss. 907; Picard v. Shantz, 70 Miss. 381; Clopton v. Spratt, 52 Miss. 251; Chaffee Telliaferro, 58 Miss. 544; Payne v. Commercial Bank, 6 S. & M. 24. All of the above cases h......
  • United States Fidelity & Guaranty Co. v. Parsons
    • United States
    • Mississippi Supreme Court
    • March 21, 1927
    ...of the cost of materials. This was a material breach. This question appears to have been conclusively settled by our court in Picard v. Shants, 70 Miss. 381. above authority from our own court is conclusive, but we might add that it is in harmony with an unbroken line of decisions from the ......
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