| Mich. | Jun 30, 1896
The defendants executed a bond, as sureties, with and for one Margaret Depew, their principal, for the faithful performance by her of a building contract, and this action was brought upon the bond. Defendants were successful in their defense, and the plaintiff has appealed.
The contract bound Margaret Depew to furnish materials and to erect a dwelling for the plaintiff on or before December 1, 1892, in accordance with the plans and specifications and drawings made by George E. Depew (her husband), the architect of the building, subject to his supervision and entire approval. In consideration there
It is conceded that, at the time work was stopped upon the building, the plaintiff had paid considerably more money than was due by the terms of the contract. The parties disagree about the amount; one claiming that the contract price was paid within $100 or thereabouts, and the other contending that it was at most between $400 and $500, but admitting that it was between $100 and $200. This, being in contravention of the terms of the contract, released the sureties, pro tanto at least. Did it release them from all liability?
In 1 Brandt on Suretyship (section 39?) it is said:
“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 by installments, is discharged if the principal is paid faster than the contract provides. The surety is thereby deprived of the inducement which the principal would have to perform the contract in due time, * * * and it is no answer to say that it is for the advantage of the surety, or that he has sustained no prejudice.” Warre v. Calvert, 7 Adol. & E. 143; Calvert v. Dock Co., 2 Keen, 644.
In the latter case the court said of a premature payment :
“What the company did was perhaps calculated to make it easier for Streather to complete the work if*668 he acted with prudence and good faith, but it also took away tnat particular sort of pressure which by the contract was intended to be applied to him.”
The question was again fully discussed, and the doctrine of Calvert v. Dock Co. affirmed, in General Steam Navigation Co. v. Rolt, 95 E. C. L. 550.
The American authorities are in harmony with the foregoing English cases. Clagett v. Salmon, 5 Gill & J. 314; Barns v. Barrow, 61 N.Y. 39" court="NY" date_filed="1874-09-05" href="https://app.midpage.ai/document/barns-v--barrow-3579098?utm_source=webapp" opinion_id="3579098">61 N. Y. 39 (19 Am. Rep. 247); Simonson v. Grant, 36 Minn. 439" court="Minn." date_filed="1887-02-21" href="https://app.midpage.ai/document/simonson-v-grant-7965280?utm_source=webapp" opinion_id="7965280">36 Minn. 439; Bragg v. Shain, 49 Cal. 135; Ryan v. Morton, 65 Tex. 258" court="Tex." date_filed="1886-01-15" href="https://app.midpage.ai/document/ryan-v-morton-4894945?utm_source=webapp" opinion_id="4894945">65 Tex. 258; Taylor v. Jeter, 23 Mo. 250; St. Mary’s College v. Meagher, (Ky.) 11 S. W. 608; Erickson v. Brandt, 53 Minn. 10" court="Minn." date_filed="1893-04-07" href="https://app.midpage.ai/document/erickson-v-brandt-7967818?utm_source=webapp" opinion_id="7967818">53 Minn. 10; Board of Com’rs v. Branham, 57 F. 179" court="None" date_filed="1893-07-25" href="https://app.midpage.ai/document/board-of-comrs-v-branham-8847385?utm_source=webapp" opinion_id="8847385">57 Fed. 179; Bell v. Paul, 35 Neb. 240" court="Neb." date_filed="1892-09-21" href="https://app.midpage.ai/document/bell-v-paul-6647879?utm_source=webapp" opinion_id="6647879">35 Neb. 240; Henricus v. Englert, (Sup.) 17 N.Y.S. 235" court="N.Y. Sup. Ct." date_filed="1892-01-22" href="https://app.midpage.ai/document/henricus-v-englert-5502010?utm_source=webapp" opinion_id="5502010">17 N. Y. Supp. 235. The case of Simonson v. Grant was a hard one. The premature payments were only such as were necessary to protect the house from liens, yet the court applied the rule, saying that, “In such cases the surety may be deprived of the inducement which the principals would have to perform the contract in due time, as the contract requires,” and that “the surety has a right to insist that he is bound to tho extent, in the manner, and under the circumstances pointed out in his obligation, and no-further.” And Mr. Justice Vanderburgh cites Miller v. Stewart, 9 Wheat. 680" court="SCOTUS" date_filed="1824-02-28" href="https://app.midpage.ai/document/miller-v-stewart-85449?utm_source=webapp" opinion_id="85449">9 Wheat. 680, 703, and other cases, to the proposition that—
“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.”
This is extreme ground, and we do not find it necessary to go so far in this case. See Preston v. Huntington, 67 Mich. 139" court="Mich." date_filed="1887-10-06" href="https://app.midpage.ai/document/preston-v-huntington-7933248?utm_source=webapp" opinion_id="7933248">67 Mich. 139. The case of Board of Com’rs v. Branham, supra, contains a lengthy discussion of the Ameri can cases, which it is unnecessary to repeat. This subject was alluded to in the case of Marquette Opera-
The judgment of the circuit court is affirmed.