It is wеll settled that the liability of a surety cannot be extended beyond the terms of the contract out of which his obligation arises. If thе contract be altered without his consent, whether he sustain injury or the contract be to his advantage, it ceases to be his contract, and with that ceases his obligation. Such, however, will not be the effect of a contract by which his principal
In this case the principal contracted to build a house in accordance with a plan and specifications, and afterwards contracted to build two galleries to it, which were not embraced in the first contract, but it does not appear that this modified, in any respect, the plan or specifications made a part of that contract, or that it increased the difficulty or expense, or tended to delay the execution of the work for which the sureties were bound. So far as appears from the record, the wоrk contracted for under the second contract may have been as independent and separate from the work embraced in the first, as would have been the work of building another house. The price to be paid for the work to be donе under the second contract was not embraced in the sum agreed to be paid for the work to be done under the first.
It may hаve required more laborers to complete the work embraced in both contracts, in the time prescribed in the first, than tо do the work contemplated by that; but there is nothing in the contract from which it can be inferred that the builder contracted not to undertake any other work than that first contemplated, until that was finished. The plan and specifications gave the size оf the several openings in each story, but, so far as we can see from the record, their number and positions were not fixed, nor was the particular manner of their construction. We are therefore of the opinion that no such alteration in the contract was shown, in this respect, as would relieve the sureties from liability under their contract.
The contract of the sureties was made with reference to the contract which their principal had made with the person for whom he had сontracted to build the house, and must enter into its construction. That contract provided: ‘ ‘ That at the commencement оf this contract said George W. Morton shall pay to said L. J. Giraud the sum of $3,000, and the balance due to said Giraud upon this contraсt, in four equal installments, as the work progresses.”
The price agreed was $8,300. The entire contract price was paid in six installments other than the first; after which, the owner of the house, in consequence of the failure of Giraud to finish it, took possessiоn of it, and had the work completed, at a cost of over $700.
There was a privity between Morton and the sureties which required him to preserve all his rights against Giraud unimpaired, if he intended to look to the sureties. By a fair construction of the
This was a part of the contract for the protection of the owner of the property; but it gave a guaranty to the sureties that the work would not be paid for until it was done. This tended to their protection, and, if a part of the work was not done by their principal, the owner ought to have retained a fund in his own hands, at least equal to the contract pricе for the work not done, which would have lessened the liability of the sureties to him on failure of their principal to comply with his contract, This he did not do, but, on the contrary, he paid to their principal, in violation of the contract, the full price to which he would have been entitled had he performed the entire work.
We may, in this case, adopt the language used in Warre v. Calvert, Adol. & Ellis, 101: “The advances were not made under the contract. It might perhaps be proper for Morton to make advances for the purpose of enabling Giraud to fulfill his undertaking; but such advances are not made in terms of the contract. A surety has the right to require that the obligee shall do his duty; and I think that the advаnces made in this manner by the obligee do not render the sureties liable. It is contended that the surety is to see to the performance of his principal’s contract, and that is true; but how can he watch the advances made by the other party? Hеre he may, in fact, have known of the advances, but that does not affect the general rule. The owner should have advаnced, only what the contract bound him to advance.”
Taylor v. Jeter,
The acts of Morton released the sureties from any claim which he prеsents against them, and the judgment of the court below will be reversed, but, as only one of the sureties is before this court, the cause will be remanded.
It is so ordered.
Reversed and Remanded.
[Opinion delivered January 15, 1886.]