65 Tex. 258 | Tex. | 1886
It is well settled that the liability of a surety cannot be extended beyond the terms of the contract out of which his obligation arises. If the 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 work 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 done 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 have required more laborers to complete the work embraced in both contracts, in the time prescribed in the first, than to 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 of 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 contracted to build the house, and must enter into its construction. That contract provided: ‘ ‘ That at the commencement of 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 contract, 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 possession 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 price 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 advances 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? Here he may, in fact, have known of the advances, but that does not affect the general rule. The owner should have advanced, only what the contract bound him to advance.”
Taylor v. Jeter, 23 Mo. 251, was a case involving the same principles involved in this case, and very similar facts, in so far as they affect the question before us, and in disposing of the case the court said: “The contract duty of this builder was to furnish the materials and do the labor, and he failed in both respects when he allowed the building to be encumbered with three liens. The owner having notice of them, and paying what by the substantial terms of the contract he was entitled to retain until they were removed, voluntarily abandoned an ample fund, which, according to the conditions of the contract, was to accumulate in his own hands as the primary security for its due performance, and in which the surety had an equal interest with himself, he must, therefore, bear the loss occasioned by his own
The acts of Morton released the sureties from any claim which he presents 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.]
