188 Ind. 660 | Ind. | 1919
— On December 29, 1908, Crouch and Son, appellants, sold and delivered to Robert H. Parker, also named as appellant, a certain stallion at the agreed price of $1,950, for which sum the said Robert H. Parker and his mother, Hannah Parker, appellee, executed their three several promissory notes each calling for $650 and interest. As a part of the contract of sale, and contemporaneously with the execution and delivery of said notes, the said Crouch and Son, hereinafter designated as appellants, executed and delivered to said Robert H. Parker their written contract, by which they warranted said stallion to be a “satisfactory sure breeder,” and agreed that if said horse should not be as warranted, they would, on or before April 1, 1910, take him back, if delivered to them at Lafayette, Indiana, and give in exchangé another stallion of equal value and of the same breed.
The third and fourth paragraphs of answer each aver that the note sued on and the warranty given by appellants were contemporaneously executed and delivered; that the execution and delivery of the warranty was a consideration for appellee’s execution of the note as surety; that the stallion was not as warranted, and that the extension of the warranty was without her knowledge and consent, as was the new agreement of April 13, 1911. The only objection to these paragraphs of answer which appellants specified in their memorandum to. the demurrers thereto is that appellee “had not executed the warranty, was not a party to it, and therefore has no right to base a defense thereon.” The question thus presented for our consideration is whether or not the changes in the original contract, which changes were made by agreement between the principal on the note and the appellants, without the knowledge of appellee, discharged appellee as surety. Appellants concede that if appellee had been a party named in the warranty, the extension and surrender of that instrument without her consent would have released her from liability on the note; but they contend that, inasmuch as her name does not appear in the warranty, she is not released.
*666 “5th. As to the balance, 2,000 dollars, it is agreed as follows: Said Judah herewith advances to said Brown, as and for a loan on a note payable . one day after date, the said sum of 2,000 dollars, which note shall be satisfied by the completion of said building as in this contract is provided; and which note, also, shall not become or be payable so long as said Brotvn shall progress with the preparation of materials, and with the erection of said building, so as to warrant the said superintendent in the reasonable expectation of the progress and completion of the work, as is hereinbefore provided."
Dated October 13,1855, which is the same date as the note, and signed by Brown, Zimmerman and Judah. The answer further shows that on June 5, 1856, the following further agreement was. made without the knowledge or consent of Zimmerman, by which said Brown and one Stokes should, by ^November 1, 1856, put an additional story on the building then under contract between Brown and Judah, for the further consideration of $1,700, to be paid on the completion thereof. It was held that the second contract was such an alteration of the original agreement that it discharged Zimmerman, the surety. Miller v. Stewart (1824), 22 U. S. (9 Wheat.) 680, 6 L. Ed. 189, holds that the contract of the surety is to be strictly construed, and is not to be extended beyond the scope of its terms.
In Jeffries v. Lamb (1880), 73 Ind. 202, the court holds that, where the payee of a note induces another to become surety thereon, by agreeing that he would
In Trentman v. Fletcher (1885), 100 Ind. 105, 109, the court said that, where a surety signs a note in consideration of an agreement with the payee that the latter should do something in the future, if the agreement is sufficiently certain and of such a character that the surety has a right to rely on its performance, and such agreement is not a contradiction of the note, or some of its terms, we perceive no reason why a failure on the part of the payee to perform should not be held a failure of the consideration as between the payee and surety.
The court did not err in overruling the demurrers to the third and fourth paragraphs of answer.
The appellants claim that instruction No. 2 required the plaintiff to prove the execution of the note in suit; that instruction No. 3 does not correctly state the ma
These instructions are not subject to the infirmities claimed by appellants. The instructions, taken as a whole, state the law of the case correctly, and the verdict is sustained by sufficient evidence. No error appearing in the record, the judgment is affirmed.
Note. — Reported in 125 N. E. 453.