123 Ark. 486 | Ark. | 1916
(after stating the facts).
In Simpson & Webb Furniture Co. v. Moore, 94. Ark. 347, the court held, (quoting syllabus):': “A separate answer of one defendant will be held to inure to the bene^ fit of all the defendants when it; states a defense comtoion to' all of them. ’ ’
Although it is thue that the same state- of ‘facts as to the change in the terms of the lease contract relied upon by appellee Brown in defense of the suit’, existed’ as to his co-surety, said M. W. Murray, it does not necessarily follow that he was discharged from liability as a ¿surety thereby since he would- not have been if he consented'to the change. Appellee Brown answered, setting up this defense and alleging that a change of, the terms of ,fhe. contract had been made without his consent. This was personal to him and the. court erred in rendering judgment discharging both him and his co-surety said M. W. Murray, who had failed to answer., . . , , ..
The 'building,- fixtures and appliances including the Edison machine for exhibition of pictures, were leased for the purpose of operating a moving picture show and the sureties upon the failure or refusal of their principals to perform the lease .contract, could have- undertaken it themselves, being bound to its performance. They may have been willing to be bound for the payment of the-rent upon the moving picture theatre, thinking their principal would be able out of the money realized from its operation to pay the sum agreed upon and expenses, .when they would not have been willing to sign the bond had they known that a new machine for exhibition of the pictures was to be installed at an additional expense to their principals of $185. If the phrties to’ the lease had -agreed to sell the furnishings in the theatre leased and purchased pthers at a cost to the lessees of say $5,000 more than the' price received for the old furnishings and fixtures, it would certainly have constituted .a material change in the conditions and reduced the liability of the lessees accordingly to perform their obligation for which the- surety was bound and should discharge the surety no less than if the terms of the contract itself were expressly changed. Moreover, -said contract was materially altered by the agreement and installation of the riew Powers 6-A machine' in lieu of the Edison disposed of which they were bound to return-, providing for the payment of the price for which it sold or the return of the new machine in its stead. . . '
' ' If follows that no error was committed in the rendition of the judgment in favor of appellee Brown discharging him from liability and same is affirmed' as to him, but'the judgment of dismissal as to said M. W. Murray being erroneous is reversed and the causé remanded with directions to enter a judgment in appellant’s favor against him.