Wehr v. German Evangelical Lutheran Saint Matthew's Congregation of Baltimore

• Decision Date: 19 June 1877
• Citation: 47 Md. 177
• Parties: FREDERICK WEHR v. THE GERMAN EVANGELICAL LUTHERAN SAINT MATTHEW'S CONGREGATION OF BALTIMORE. MARY E. WEHR, Administratrix of HERMAN WEHR v. THE GERMAN EVANGELICAL LUTHERAN SAINT MATTHEW'S CONGREGATION OF BALTIMORE. AUGUST WEHR, Administrator d. b. n. of CONRAD SIEGMAN v. THE GERMAN EVANGELICAL LUTHERAN SAINT MATTHEW'S CONGREGATION OF BALTIMORE.
• Court: Maryland Court of Appeals

47 Md. 177

FREDERICK WEHR v. THE GERMAN EVANGELICAL LUTHERAN SAINT MATTHEW'S CONGREGATION OF BALTIMORE.

MARY E. WEHR, Administratrix of HERMAN WEHR v. THE GERMAN EVANGELICAL LUTHERAN SAINT MATTHEW'S CONGREGATION OF BALTIMORE.

AUGUST WEHR, Administrator d. b. n. of CONRAD SIEGMAN v. THE GERMAN EVANGELICAL LUTHERAN SAINT MATTHEW'S CONGREGATION OF BALTIMORE.

Court of Appeals of Maryland

June 19, 1877

SURETYSHIP.

The cause was argued before BARTOL, C.J., MILLER, ALVEY, STEWART and BRENT, J.

Orville Horwitz and Albert Ritchie, for appellants.

It will be seen from the contract, that whenever such changes as the contract authorized were made, it was expressly stipulated viz.,

1st. That such changes should be specified in writing.

2nd. That such writing should be signed by the contractors architects and building committee.

3rd. That the sum to be paid therefor should be fixed by the architects.

4th. That such sum should be set forth in said writing.

5th. That such extension of time as should be proper by reason of any changes, (the degree of extension being determined by the architects,) should be specified in the written agreement.

The case depends, it is submitted, upon two questions, viz.,

1st. Were the changes made such as the contract provided for?

2nd. If they were, were they made in the manner required by the contract?

"The law favors a surety, and watches his position and his rights with considerable jealousy." DeColyar, 388.

"The claim as against a surety is strictissimi juris, and it is incumbent on the plaintiff to show that the terms of the guaranty have been strictly complied with." Bacon vs. Chesney, 1 Stark., 192.

"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, and Courts of equity, as well as of law, have been in the constant habit of scanning the contracts of sureties with considerable strictness." Miller vs. Stewart, 9 Wheat., 702.

Any variation of the terms of the original contract between creditor and debtor, whether material or not, will discharge the surety, if it appears that he became surety on the faith of the original contract, or if he has made these terms part of his own contract; and if notice were given to the surety of the terms of the contract between the creditor and the debtor, and after such notice he executed the guaranty, he is held to have become surety on the faith of the original agreement; and where the surety has made the terms of such original contract part of his own contract, any variation will discharge the sureties, because it amounts to a breach of the contract with him. DeColyar, 389-90-94; Gardiner vs. Harback, 21 Ill., 129.

In Steam Navigation Company vs. Rolt, 6 C. B., N S., 550, the surety was discharged because the contractor was allowed to anticipate payment of the last two instalments.

In Calvert vs. London Docks Co., 2 Keen, 638 the surety was discharged because contractor was paid more than instalments provided for.

In Bacon vs. Chesney, 1 Stark., 192, it was held that where surety guaranteed payment for goods, provided eighteen months credit were given, and the goods were sold on credit of twelve months, the surety was not liable, though six additional months were afterwards given.

In Whitcher vs. Hall, 5 B. & C., 269, where the agreement was, that the tenant should have from the landlord, the milking of 30 cows, at pounds sterling>>>7.10 s. per annum, and, in fact, he had the milking of but 28 during the part of the year, though he had 32 during another part, it is held that the surety for the rent was discharged.

In Phillips vs. Astley, 2 Taunt., 206, it was held that on a contract to guarantee a bill for a given sum, the surety was not responsible, even to the extent of the given sum, on a bill given for a larger sum.

"The principle is perfectly settled that the creditor, by making a new agreement with his debtor, inconsistent with the terms of the original agreement, or any alteration in those terms, or in the mode or the time of performing them, without the assent of the surety of such debtor, thereby discharges the surety." Sasscer vs. Young, 6 G. & J., 247.

In Mayhew vs. Boyd, 5 Md., 109, it is held, that whether the endorsers were prejudiced, or their liability enlarged, or not, by the departure shown, did not vary the question; that "any dealings with the principal debtor by the creditor, which amounts to a departure from the contract by which a surety is to be bound, and which by possibility might materially vary or enlarge the latter's liabilities without his assent, operates as a discharge of the surety."

In Zimmerman vs. Judah, 13 Ind., 286, it was held that a subsequent agreement between owner and contractor, made without the knowledge or consent of the surety, to put an additional story on the building contracted for, was such an alteration of the original contract as discharged the surety.

In U.S. vs. Jillotson, 1 Paine, 305, the sureties were discharged because a subsequent contract modified the original one. It is also held there, "that the sureties were bound only to look to the contract to learn the extent of their responsibility, and they are entitled to all the guards and checks it contains, to shield them from risk and hazard." Page 328. See also, Sharp's Rifle Case, 33 Conn., 1; Brigham vs. Wentworth, 11 Cush., 123; Manufacturers' Bank vs. Cole, 39 Me, 192-3; Bagley vs. Clark, 7 Bosw., 94; Taylor vs. Johnson, 17 Ga., 521; Smith vs. U. S., 2 Wall., 236; Rathbone vs. Warren, 10 John., 587; Burge, ch. 8, page 214; Parson on Notes and Bills, (2 nd Ed.,) 239.

In Green vs. Miller, 6 John., 39, there was a submission to five arbitrators, and nothing said as to whether all were to agree in the award, or whether it was to be made by a majority, or any less number than the whole: only four agreed to the award; held, that "as a submission to arbitrators is a delegation of power for a mere private purpose, it is necessary that all the arbitrators should concur in the award, unless it is otherwise provided by the parties. In matters of public concern, a different rule seems to prevail; there the voice of the majority shall govern."

In Sinclair vs. Jackson, 8 Cow., 544, it is held that when several persons are appointed trustees, or have power to act for a mere private (not a public) purpose, they must all join in executing the trust or power. See also, Perry on Trusts, secs. 412, 413.

Stewart Brown and Frederick W. Brune, for appellee.

The defences set up by the sureties are, that they are discharged from all liability by reason of certain alterations in the church building, which were made, as is alleged, without the consent of the sureties, and which changes they contend were not provided for in the orginal contract, or were not made in the mode and form provided by the original contract, with reference to such alterations as said contract permitted to be made in the plans or works.

Upon examination of the finding of the Court below, with a view to ascertaining which are the true questions on this appeal, we find that the Court decided,--

(A.) That all the changes complained of were reasonable and proper under the circumstances, and did not materially change or affect the general character and plan of the building.

(B.) That as matter of fact, the changes specified as Nos. 1, 2, 3 and 4 were evidenced by writings, duly executed in conformity with the contract and specifications.

(C.) That in fact there was no such extension of the building as claimed under No. 5, and no such delay as claimed under No. 8.

(D.) The Court disregarded the extra digging incidental to and made necessary by the extra stone foundation, as a matter that could, in no way, have increased or affected the responsibility of the contractors, and which, therefore, could not affect the sureties, as all the evidence showed this digging was done by the committee themselves, and by them paid for.

(E.) The Court also found, in effect, that the minor alterations, made even without the intervention of the committee, were under the simple permission of the architects, for the benefit of contractors, and accepted in lieu of stricter and more expensive requirements of the original specifications, and fell under the general power conferred on the architects by the contract, of directing the works to be performed in their way, whether so appearing in the drawings, &c., or not.

(F.) It was, indeed, expressly conceded by the defendants, that all the admitted changes, other than Nos. 1 and 2, were unimportant in themselves, and that standing alone they would not discharge the sureties, and the Court, as a fact, found that these were of trifling importance, and within the fair intendment of the contract.

It would seem, therefore, that the only questions open on this appeal, pertain to the changes in the plans above referred to as No. 1, the extension of the church three and a half feet, and No. 2, the extra stone foundation, and their bearing upon the responsibility of the contractors and sureties. These changes, (as well as all the others originally set up by defendants, but either abandoned or found by the Court not to have been actually made,) the plaintiff contends were made fairly in compliance with the terms and provisions of the building contract and specifications, which expressly permit any changes, whether in addition to or deduction from the original works.

Looking at the contract in this connection, in the first place we find,--

I. That this contract, in the first place provides for "all the works...