54 Mo. App. 272 | Mo. Ct. App. | 1893
— The defendants, Evans and Orr, are sureties of defendant Hitt. Plaintiff is the assignee of the Chicago Safe and Lock Company. Judgment was rendered against the defendants and the sureties appealed.
The Chicago Safe and Lock Company employed defendant Hitt as the general manager of its “Kansas
2 Brandt on Suretyship, sec.,397, stated that: “A surety for the completion of work to be performed by the principal, whereby 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.”
Now to apply the reasoning and the principle of these cases to the case at bar. In employments of service there are at least two inducements and incentives to faithful service in accordance with the agreement for such service. These are the desire a man has in a moral point of view to perform his obligation and the fear he has of loss of employment if he fails to do so. Both these inducements to perform the contract in this cause were brought to naught by the act of plaintiff. Instead of saying to Hitt, you will break your contract and promise; you will be guilty of a breach of faith, and we will discharge you if you retain our money, the company says to him, that it will be no breach of faith, and that he may set aside the terms of the contract and retain the money. The company had no right to withdraw these inducements by expressly authorizing Hitt not to perform his agreement, by releasing him from his undertaking.
It is, however, said that the company did not release Hitt from paying the money, but only from the mode and time of payment. But it was from this cause, the sureties can well say, that the defalcation has occurred. But the inforcement of the rule governing the contracts of sureties does not require that the surety shall be injured by the act of the creditor. If the creditor interferes with the performance of the contract and by such act authorizes or directs the principal to perform in some other way, the sureties are discharged without
We are aware of that class of cases where indulgence, forbearance, passiveness on the part of the ■creditor will not release the surety. Such is the case of Railroad v. Shaeffer, 59 Pa. St. 350, on which plaintiff largely relies. That case is totally different from this. In that case the railroad officers knew that the cashier was not making monthly reports as required by the rules of the company and referred to in his official bond. The company, after repeated failures of the cashier to make reports, dismissed him, but neglected to notify his sureties of its action or of the cashier’s defalcation. This was held to be mere forbearance and not to discharge the sureties, and with such conclusion we find no fault; but we are unable to see where it applies to the facts before us. Neither do we consider the case of Chew v. Ellengood, 86 Mo. 260, applicable to the facts of this case.
II. We have assumed Brisco to be the company in the foregoing, and the remaining question is whether he was such an agent as possessed the power or authority to bind the company in waiving the provisions of the contract as set forth herein. He was shown to be the general manager of the company’s business, and that he was managing its affairs, and that he entered into the contract as it was originally made, and that he did actively supervise this office at Kansas City. The evidence as to Briscoe’s agency is quite short, but also quite comprehensive in its effect and bearing. He is •stated to be the general manager of the company. This certainly implies power and authority to manage the company’s business. But he is also . stated to have entered into this contract for the company, and the •ease concedes that he had authority so to do. The
We are thus led to the conclusion that the sureties were discharged and the judgment should be reversed.