6 F. Cas. 775 | D. Nev. | 1878
On the argument, counsel for plaintiff admitted that the defendants are not liable on this bond for anything more than eight hundred and eighty-three dollars and thirty-three cents, the amount due from Dexter to Ullrick under the first agreement, for a weekly mail service at eighteen hundred dollars a year. The defendants resist any recovery against them upon two grounds, the first of which is, that at the time the tri-weekly service began there was a new agreement made to which the bond has no reference. The testimony, however, does not support this position. It appears from Ullrick’s testimony that the compensation for carrying the mail two times more a week than he had at first contracted to do, was measured by the first agreement; and, as under the first agreement, Ullrick was to receive eighteen hundred dollars per year for one service per week, Dexter further agreed upon Ullrick’s undertaking the tri-weekly service to pay him eighteen hundred dollars for each additional trip in excess of one a week. The new contract was not a substitute for the old, but a contract distinct from it, providing for a new mail service at a compensation measured by that provided in the first contract. The sureties, therefore, are not released by Dexter making the further agreement. The second ground is that the sureties are discharged from all liability by reason of the interlineations altering the bond after its execution. The substance of the rule on this point is stated in Smith v. U. S., 2 Wall. [69 U. S.] 219, as follows: “Any variation in the agreement to which the surety has subscribed, which is made without the surety’s knowledge or consent, and which may prejudice him, or which may amount to a substitution of a new agreement for the one he subscribed, will discharge the surety.” Because he can then well say: “I.came not into this contract.” If, then, the alterations do not prejudice the defendants, and do not amount to a substitution of a new contract for the old one, the sureties are not thereby relieved from liability. An immaterial alteration, though made by the obligee himself, will not destroy the bond. Both of the alterations occur in the preamble or introductory part of the condition of the bond, in which is stated the terms of the agreement between Dexter, the principal, and Ullrick, the obligee, to secure the due performance of which on Dexter’s part, the bond was given. The condition following this recital of the agreement is, that if Dexter “pays all sums of money as they may become due according to the terms of said contract,” then the bond shall be void. Whatever the change in the recital of the agreement, the condition remained the same, and hence such change would be immaterial, unless it in some way affected the terms of the contract in respect to the time or manner of the payments to be made by Dexter to Ullrick.
But neither of the interlineations do so affect the contract. They do not in any manner change the rights, duties or obligations of any of the parties under the instrument. The name “Adam E. Smith,” as interlined, may seem at first view to change the terms of the contract in respect to the persons from whom Dexter might receive the money. But when we know the situation of the parties when the agreement was made it does not do so. Adam E. Smith -was the first or original contractor with the government, Dexter a subcontractor under him, and Ullrick under Dexter. The money to be received by Dexter was the money due from the government for the particular mail service undertaken by Ull-rick. Until it came into his hands, whether directly from the United States, or through Adam E. Smith, or any other person whatsoever, neither he nor his sureties could become liable to Ullrick on the bond. Before the name Adam E. Smith was interlined, this recital read that Dexter had agreed to pay the money quarterly, “or as the same may be received from the United States or by said T. W. Dexter.” This would include a receipt of the money directly from the United States or from any person, and by the condition the liability attached only when the particular money came into the hands of Dexter. Thus this alteration in no manner prejudiced the makers of the bond or changed the legal effect of that instrument.
The second alteration does not purport to be a recital of any portion of the agreement referred to in the condition of the bond and has no possible effect on the liability of the obligors. It is an independent covenant by Dexter not to put any opposition on Ullrick’s mail route, and seems to be an afterthought of Ullrick’s which was inserted in the bond by the attorney instead of in the agreement, where it properly belonged. At all events,
