113 Ark. 429 | Ark. | 1914
(after stating the facts). The only question presented for consideration is whether appellants have been discharged from liability on the bond, executed by the lessee to the lessor for securing the payment of the rent, upon which they are sureties. It is conceded that before the end of the first year of the term of the lease, the lessee agreed with the lessor to, and did surrender, one of the store rooms and release it to the lessor for the consideration of $250 paid by her, and that she immediately thereafter leased said store room for $75 per month. This was done without the knowledge or consent of the sureties upon the bond. It was a material alteration of the terms of the contract without their consent, and released them from the further performance of it. They may have been perfectly willing to have been bound for tbe payment of $100 rent for the two store rooms, and bad a right certainly to rely upon their principal paying bis rent out of tbe entire property leased. If be bad abandoned it, they could have taken bis place and would have been in much better condition to save themselves a loss with both tbe store rooms. The one released was immediately thereafter rented for $75 per month, and tbe two store rooms might have been more easily rented together than separately. The courts have long held that any material alteration in tbe terms of a contract, whereby a surety is bound, discharges tbe surety if be has not consented to tbe change, and this is so even if tbe alteration be for tbe benefit of tbe surety-; for, although tbe principals may change their contract to suit their pleasure or convenience, they can not bind tbe surety thereto without bis consent, and, as tbe new contract abrogates tbe old, tbe surety is discharged from all liability unless be has consented to tbe alteration. O’Neal v. Kelley, 65 Ark. 550; Singer Manufacturing Company v. Boyette, 74 Ark. 601; 1 Brandt on Suretyship, § 427; Hubbard v. Reilly, 98 N. E. 886; Warren v. Lyons, 9 L. R. A. 353; Stern v. Sawyer, 61 Atl. 36; Miller v. Stewart, 9 Wheaton 702; Penn. v. Collins, 5 Rob. (La.) 213. In Berman v. Shelby, 93 Ark. 479, tbe court said, “For ‘a surety will be discharged by any material and unauthorized alteration of bis contract, and it is immaterial that tbe principal assured tbe obligee that tbe alteration would not affect the original contract, or that be failed to carry out tbe contract as altered.”
Appellants were only sureties for tbe payment of the rent in accordance with tbe terms of their bond and the lease in ease of tbe lessee’s failure to pay, and tbe contract having been materially changed without their consent, they were thereby released from further liability. The judgment is reversed and tbe cause dismissed.
