Ambrose v. Hayes, 36 App. D.C. 255

Ambrose v. Hayes

36 App. D.C. 255 | D.C. Cir. | 1911

Mr. Justice Robb

delivered the opinion of the Court:

The first question raised by the assignments of error relates to the ruling of the court on the objection to the introduction in evidence of the instrument in suit. In the declaration the terms of said lease between the plaintiff and the Strasburgers are set forth. This is followed by an averment substantially in the language of the defendant’s undertaking, and that averment is followed by an averment setting forth various defaults in the payment of rent, aggregating more than the amount of said undertaking. This was sufficient. To interpret this undertaking as the defendant insists it should be interpreted would destroy it. The defendant is entitled to a strict interpretation of his contract of suretyship, but that interpretation must be a reasonable one. Thus interpreted, it is apparent that the defendant promised that in the event of a default of any of the conditions of said lease resulting in damage to the plaintiff, he would make good such damage to the extent of $1,500. In other words, plaintiff was not required to prove a default in (ill the covenants of the lease, but was entitled to recover for a default in any of them.

The second assignment of error deals with the question *260whether there was such a variation of the contract which the surety undertook to see fulfilled as released the surety from, his obligation.. It is, of course, admitted by the plaintiff that under the law of suretyship any definite and binding agreement between a principal and surety, made upon sufficient consideration and without the consent of the surety, which extends the time of payment by the principal, discharges the surety. Union Mut. L. Ins. Co. v. Hanford, 143 U. S. 187, 6 L. ed. 118, 12 Sup. Ct. Rep. 437; Catholic University v. Morse, 32 App. D. C. 195. Such a contract supersedes the contract inducing the suretyship, and under the rule of strictissimi juris the surety is released. It is insisted, however, in the present case, that the testimony of the witness. Strasburger is so lacking in definiteness as to amount to no defense to the plaintiff’s action. An analysis of that testimony compels an acceptance of this view. Considering it in its most favorable light, as the defendant is entitled to have it considered in view of the refusal of the court to submit this issue to the jury, we find that the plaintiff was not asked .to defer payment of the rent to a time certain, or, as averred in the plea, “until after the close of the hotel season,” but that he was merely asked “to be lenient;” that if the season was satisfactory a bonus would be paid for this indulgence. This testimony is fatally defective in at least one respect. It fails to show that any definite extension of time was asked or given.

It is well established that an extension of time, to amount to- a discharge of the surety, must be under a positive and binding contract between the surety and the principal, upon a valuable consideration, and for a fixed and definite period. Clark v. Gerstley, 26 App. D. C. 205; Hayes v. Wells, 34 Md. 512; Beach v. Zimmerman, 106 Ind. 495, 7 N. E. 237. It is apparent that the testimony upon which the defendant relies to support his plea does not meet these requirements. Defendant’s undertaking contemplated the possibility of rent becoming in arrears to the extent of $1,500, and, under the testimony relied upon, even though viewed in its most favorable light, the plaintiff merely suffered such a condition to develop. In *261other words, plaintiff did no more than to extend a credit which, according to defendant’s witness, was absolutely necessary. Such an indulgence does not furnish ground for the release of the surety. United States Fidelity & G. Co. v. Golden Pressed & Fire Brick Co. 191 U. S. 416, 48 L. ed. 242, 24 Sup. Ct. Rep. 142.

Judgment affirmed, with costs. Affirmed.