Sage v. Strong

40 Wis. 575 | Wis. | 1876

Lyon, J.

The instrument upon which this action is brought, was signed by the defendant as surety for A. W. Sage. It is so stipulated in the case. The legal effect of the instrument is, that the defendant undertook that Sage should perform the requirements of the original judgment in the divorce suit in respect to the payment of allowances. The only. question presented for our determination on this appeal is, Did the modification of that judgment release him from-such undertaking? We think this question must be answered in the affirmative. The defendant’s liability is limited by the original judgment; and that, if not destroyed, has been very materially altered without his consent. The rule is elementary, and of almost universal application, that a surety for the performance of a contract or obligation is discharged if such contract or obligation be materially changed without his consent. That rule is applicable here. The defendant became surety for the payment, to the plaintiff of thirty dollars on, the 1st day of May, 1875, pursuant to a judgment which required A. W. Sage to pay lier that sum ou that day. Before the payment became due, the court, at the instance of the plaintiff and without the consent of the defendant, so modified the judgment that no sum was due her on that day, but a larger sum became due to her from A. W. Sage on another day. This left no judgment to which the undertaking of the defendant is applicable, and necessarily relieved him from liability.

Had the last judgment been merely that the former husband of the plaintiff pay her a sum additional to the sum allowed in the original judgment, leaving such original judgment undisturbed, it is probable the defendant would remain liable as surety. But that course was not pursued.

This case is not taken out of the general rule above stated by the fact that the defendant entered into the agreement with knowledge that the court had power to alter the judgment for alimony. Any person who becomes surety for the performance of an obligation does so with knowledge that such obligation' may lawfully be altered by the principals. Nevertheless if they do alter it without his consent, he is discharged. And so it must be if a secured judgment be altered without the consent of the surety.

We conclude that the defendant is released from liability by the modification of the original judgment; and hence, that the complaint should have been dismissed.

By the Gowrt. — Judgment reversed, and cause remanded for further proceedings according to law.