80 Minn. 242 | Minn. | 1900
The defendants Julia F. Greenleaf and Maurice E. Todd were partners in the banking business at Preston, this state, under the name of the Fillmore County Bank, and were selected and designated as a depositary of the public funds of Fillmore county pur
On the trial it was conclusively established that when the sureties executed and delivered the bond its condition was (stating it according to its legal effect) that the principals would pay interest on all public money deposited with them at the rate of three per cent, per annum upon the monthly balances of such deposits; and, further, that they would credit such interest, and hold the public funds, with accrued interest, subject to draft and payment at all times. But after the delivery of the bond by the sureties, and without their knowledge or consent, Todd, one of the principals, with the consent of the county commissioners, changed the condition of the bond so as to make the rate of interest two per cent, per annum instead of three. The trial court dismissed the action, and the plaintiff appealed from an order denying its motion for a new trial.
1. The plaintiff claims that the ruling of the trial court was error, because the stipulation and condition in the bond for the payment of interest was surplusage; hence the alteration of the bond was in an immaterial part thereof, and did not affect the validity of the bond.
The basis of this claim is the assumption that the statute does not require or contemplate that the interest should be secured by the bond. It is true that the statute does not in express terms require that the bond shall secure the payment of the interest, but it is equally true that it does not in express terms require that the condition of the bond shall secure the payment of the principal of the fund to be deposited. The statute does not, in terms, prescribe the conditions of the bond. But it requires a bond to be given and
2. Tbe plaintiff further claims that tbe alteration in tbe terms of tbe bond was not material because it reduced tbe rate of interest; hence it was not prejudicial to the sureties.
It is unnecessary to inquire or speculate whether tbe alteration was prejudicial to tbe sureties or not, for tbe bond, after it was materially altered without their consent, was no longer their bond. Its identity was destroyed by tbe alteration. It is clear, upon principle and authority, that if a material alteration is made in a contract without tbe surety’s consent be is discharged, even if tbe alteration may have been for bis benefit. His contract being one strictissimi juris, be is only bound by tbe very terms of tbe contract. Simonson v. Grant, 36 Minn. 439, 31 N. W. 861; Flanigan v. Phelps, 42 Minn. 186, 43 N. W. 1113; Board of Co. Commrs. v. Gray, 61 Minn. 242, 247, 63 N. W. 635; Miller v. Stewart, 9 Wheat. 680; 2 Brandt, Sur. § 388. In the cases of Post v. Losey, 111 Ind. 74, 12 N. E. 121, and Whitmer v. Frye, 10 Mo. 348, it was held that an alteration made in a promissory note, without tbe consent of tbe
Order affirmed.