55 Mo. App. 277 | Mo. Ct. App. | 1893
Lead Opinion
One, Glustave Naurath, was engaged in selling beer at Stanberry, Missouri, and he bought his supplies from the plaintiff brewing company. To secure payment of the bills for beer the brewing company required Naurath to furnish it a bond with satisfactory security, and this he did and delivered it the instrument here sued on, purporting to be a bond in the penal sum of $500, under the hand and seals of said Naurath as principal, and defendants Hazen, Bis-son, Oonnly, Stevens, Burnley and Glennug as sureties. Naurath subsequently defaulted in the matter of the purchases of beer, left the country, and plaintiff thereupon brought this action on the alleged bond to recover the amount of such deficiency. The sureties defend on
Disregarding points made by the appellant’s counsel as to the court’s declaration of law, and admitting some errors and inconsistencies therein, yet, under the undisputed facts of this case, we must hold the judgment to be clearly for the right party, and, therefore, affirm the same. That this instrument, when signed by the principal and his sureties, was not under seal, but was in form only a simple contract, cannot be questioned — the evidence in that regard is all one way. And that the seals were added to each name, and the character of the instrument thereby changed, all without any knowledge or consent of these defending sureties, is also uncontrovertably shown by the evidence. Whether such alteration in the nature of the instrument was made by Naurath, while the same was in his possession, or was made by the plaintiff- after delivery to it, can make no difference. In either event such alteration was unauthorized and such as to discharge the sureties. This is the law of this state, as shown by the numerous cases cited in brief of defendants’ counsel..
The courts will not tolerate any unauthorized change in the surety’s undertaking. As well said by Justice Story: “To the extent, and in the manner, and under the circumstances pointed out in the obligation he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and an alteration
We have here a case where the sureties signed, not a bond but a simple contract in writing as distinguished from a specialty, and this was subsequently, without their assent, express or implied, changed to a bond by adding seals to their respective signatures. This, too, was a material alteration. The instrument they signed was not of that dignity as the one sued on; the bond, being under seal, imparted a consideration, while the instrument to which they affixed their signatures did not. As said by Story, the sureties can only be held “in the manner and by the very terms pointed out in the obligation.” See following decisions in point: Trigg v. Taylor, 27 Mo. 245; Haskell v. Champion, 30 Mo. 136; Ivory v. Micheal, 33 Mo. 398; Capital Bank v. Armstrong, 62 Mo. 59; State v. McGonigal, 101 Mo. 353, 363.
The case in hand does not belong to the class of which State to use, etc. v. Potter, 63 Mo. 212, is a sample, and on which plaintiff’s counsel seems to rely. In that case Potter, the surety, was not allowed to defeat the action on the alleged ground that the principal had agreed when he, Potter, signed, to get one Bothrick, also as cosurety, unless it was also shown that the obligee had notice of such an agreement. It was there held that Potter was estopped from making such a defense. Judge Sherwood, delivering the opinion of the court, says: “Here the surety * * * had invested the principal with an apparent authority to deliver the bond; and there was nothing on the.face of the bond, or in any of the attending circumstances, to apprise the official who accepted it that there was any secret agreement which should preclude the acceptance of the bond; and the surety is alone in fault in the matter” for his unwarranted trust in Turley, the principal, etc.'
Holding these views on the main questions raised in the record, it becomes unnecessary to discuss others now unimportant.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
Since announcing the foregoing opinion, we hiave been induced — because of a motion for rehearing filed by plaintiff ;s learned counsel — to give the case a more extended investigation, and after a careful review of numerous authorities, some of which are cited by counsel and many others disclosed by our own research, we yet feel constrained to adhere to the position we have already taken. The defense here, it must be admitted, is rather technical than meritorious. But sureties are entitled to technical defenses; they are favorites of the law, As often declared they will not be held to answer for anything, or in any manner, except as they specifically agreed. If sureties enter into an agreement in the nature of a promissory note or mere simple contract in writing, they cannot be
Plaintiff’s counsel again insists that the alteration of a written' instrument will not discharge the non-consenting surety unless such change was made after delivery to the obligee or by his knowledge or privity. As applied to this case, it seems to be contended, that if Naurath, the principal, changed the nature of the writing after it had been signed by the sureties, and without their knowledge or consent, then such altera-, tion was no defense unless such change was made after delivery to the brewing company, or was made with its knowledge or consent.
Such is not the law of this state. We find some decisions in other- jurisdictions that so hold. These cases so declare on the ground that it is a mere spoliation by a stranger; that, as between the surety obligor and the party to whom the promise is made, the principal is a mere stranger to the contract and for whose alteration or mutilation of the instrument the obligee is not responsible, and that he may recover on the instrument as it stood without change. The strongest case of this character, which we have been able to find, is that of Fullerton v. Sturgis, 4 Ohio St. (N. S.) 529. But, as already said, the courts in this state make no such distinction and hold the surety discharged whether the alteration be made by the principal while the paper remains in his hands or by the obligee or payee after delivery. Britton v. Dierker, 46 Mo. 591; Trigg v. Taylor, 27 Mo. 245; Ivory v. Micheal, 33 Mo. 398; Capital Bank v. Armstrong, 62 Mo. 59; Robinson v. Berryman, 22 Mo. App. 510; 2 Brandt on Suretyship and Guaranty [2 Ed.], sec. 388; Baylies on Sureties and Guarantors, sec. 17, ch. 12; Morrison v. Garth, 78 Mo. 434; State v. McGonigle, 101 Mo. 353, and Kingston Bank v. Bosserman, 52 Mo. App. 269, in no
But this does not cover the case at bar. These defendants signed a perfect and completed instrument and gave it into the hands of Naurath the principal. It was not a writing under seal, but the principal or this plaintiff altered the paper so as to make it a sealed instrument. He had authority to present this instrument to the brewing company, and none other. He was not authorized to commit 'forgery by changing it in form and substance.
What was said in Bank v. Sears, 4 Gray, 95 is pertinent here. • That was a suit against a surety on a note altered by raising it in amount, and the court says: “The position assumed by the plaintiffs, that the
“Sureties must be permitted to remain in precisely the situation they have placed themselves.” Smith v. United States, 2 Wall. 235. See, also, State v. Craig, 58 Iowa, 240.
The motion for rehearing is overruled.
