Ryan v. Morton

• Decision Date: 15 January 1886
• Docket Number: Case No. 2067
• Citation: 65 Tex. 258
• Parties: THOS. RYAN v. G. W. MORTON.
• Court: Texas Supreme Court

65 Tex. 258

THOS. RYAN

v.G. W. MORTON.

Case No. 2067

Supreme Court of Texas.

Jan. 15, 1886.

APPEAL from Webb. Tried below before the Hon. J. C. Russell.

G. W. Morton brought this suit in the district court of Webb county against L. J. Giraud, Thomas Ryan and Gaspar Mas, on a bond executed to him by Giraud as principal, and Ryan and Mas as sureties, and conditioned for the performance, on Giraud's part, of a contract entered into between him and Morton for the erection of a certain building on the property of the latter, according to plan and specifications attached to the contract. By the terms of the contract Giraud was to furnish all necessary labor and materials, and to complete the building within four months from May 17, 1881, and Morton was to pay him therefor $8,300, $3,000 of which amount was to be paid at once, and the balance in four equal installments as the work progressed. Giraud performed a part of the work, but abandoned the contract before the building was completed; and Morton, who had in the meantime paid him the full amount of the contract price, was obliged to finish the building at an additional expense to himself of $700 or $800.

It appears that after the execution of the contract and bond, there was a verbal contract between Morton and Giraud, by which the latter agreed to add to the building two galleries not included in the written contract. He was, however, paid extra for these, and the evidence does not show that they in any respect altered the plan or specifications, or increased or delayed the work stipulated for in the first contract.

Plaintiff alleged performance of the stipulations in the written contract on his part to be performed, and assigned as a breach the abandonment of the work by Giraud and his failure to complete the same, necessitating the employment of others at great expense to plaintiff, the inferiority of the work done and the materials used by Giraud to those specified in the contract, and plaintiff's loss thereby, laying his damages at $1,700.

The defendant Ryan answered by general and special demurrers, general denial, and pleaded specially: first, that the plaintiff and Giraud, by mutual agreement between themselves and without the consent of him, the said Ryan, materially changed the terms of the contract for the building after the execution of the bond; secondly, that the plaintiff, well knowing the character of the work done and the kind and quality of materials used by Giraud, accepted the same without objection, and, well knowing to what extent the work on said building had progressed, paid to the said Giraud without notice to him, the said Ryan, and in violation of the terms of the contract, the full contract price therefor, before its completion.

The demurrers were overruled, the cause was tried without a jury, and the court rendered judgment in favor of the plaintiff for $330.70 against all of the defendants.

The defendant, Ryan, filed a motion for a new trial, which was overruled; and the cause is here on his appeal.

McLane & Atlee, for appellant, on the proposition that a surety for the completion of work to be performed by the principal, where, by the terms of the contract, the principal is to be paid in installments, is discharged if the principal is paid faster than the contract provides, cited: Smith v. Montgomery, 3 Tex. 203 et seq.; 2 Suth. on Dam. 545; Wood's Mayne on Dam. sec. 403.

That an alteration of the contract without the surety's consent, discharges the surety, they cited: Smith v. Montgomery, 3 Tex, 203;Claiborne v. Birge, 42 Tex. 98;Zimmerman v. Judah, 13 Ind. 286;Mayhew v. Boyd, 59 Am. Dec. 101; Smith v. Turns, 16; Id. 617 5; Wait's Acts. and Def. 226, 231; Brandt on Sur. and Guar. secs. 79, 330, 338, 345, 347.

No briefs on file for appellee.

STAYTON, ASSOCIATE JUSTICE.

It is well settled that the liability of a surety cannot be extended beyond the terms of the contract out of which his obligation arises. If the contract be altered without his consent, whether he sustain injury or the contract be to his advantage, it ceases to be his contract, and with that ceases his obligation. Such, however, will not be the effect of a contract by which his principal subsequently agrees to do for the same person other and separate work, if by such contract no new terms are added to the former, and it in no way is modified, unless the work last contracted to be done in some way increases the difficulty or expense, or...