Mackay v. Dodge

5 Ala. 388 | Ala. | 1843

ORMOND, J.

The objection to the declaration cannot prevail. This cause was here at the last June term, brought by the present defendants in error against the present plaintiff in error, when it was held that the declaration was sufficient, and whatever may be its merits or demerits, it cannot now be enquired into, as the previous decision, affirming its sufficiency, is the law of this case.

The question upon the bill of exceptions is, whether McDonald, the surety, is bound by the award made by the abitrators selected pursuant to the parol agreement entered into by the attornies of the parties. • •

A surety has the right to stand upon the precise terms of his contract, and any alteration made without Ms consent, either in the terms of the original agreement, or in the mode of performing it, will exonerate him from liability.

Here the surety was bound that Mackay should perform an award made by certain persons agreed on in an arbitration bond which had been executed previously on the same day, between the defendants in error and Mackay, his principal; and as the principal would not have been bound by an award made by persons not agreed on in the submission, without his consent to such change, neither is the surety. His obligation was to secure the performance of an award made by certain designated referees; the effect of the alteration made without his consent is to make him liable for an award made by persons, only a part of whom were those originally selected. It is not important that a majority of those who made the award, were the same persons agreed on. It is impossible to know but that one of the substituted referees may have influenced the judgment of the rest. It is not, however, necessary that it should appear that the surety has been injured necessarily by the alteration, nor would it make any difference if it was evident that he was to be benefitted by it. It is a sufficient answer that it is not the contract for the performance of which he was surety.

The case of Whicher v. Hall, [5 B. & C. 269,] affords a strong illustration of the tenacity with which this principle is adhered to. The facts were, that the defendant was surety for another to the plaintiff for the milking of thirty cows, at seven pounds ten shillings each per annum; subsequently an agreement was entered into without the consent of the surety, that the hirer was to have twenty-eight cows for one half the year, and thirty-two for the residue. The court held that this was a new bargain, which was not binding on the surety, who had a right to insist on a literal performance of the original contract. That there might be but little difference between the two contracts, but that the true question was, whether the contract sought to be enforced against the surety, was the one for the performance of which he was bound.

This case may have been pushed to the verge of propriety; but it places in a strong point of view the inflexibility of purpose with which the rule, that no change shall be made in the terms or mode of performance of a contract, without the consent of the surety, is adhered to by the courts.

The awai’d made in this case not being such as the surety, was bound by the terms of his contract for the performance of, .no action can be maintained upon it against him, and it therefore becomes unnecessary to consider the other questions made at the bar. ,

Let the judgment be reversed, and the cause remanded.