101 Wis. 392 | Wis. | 1898
The sole question for decision in this case is whether the transactions mentioned show such a material alteration in the original contract as to release the surety. Unless this question should be answered in the affirmative, the plaintiff has' no standing in court. The rule laid down by all the authorities is that one who is a surety for the contractor on his bond to pay for all materials cannot claim a lien for materials furnished by him at the request of the •contractor. That would enable a man to exact payment for what he had promised should be paid by another. Phillips, Mechanics’ Liens, § 43a; McHenry v. Knickerbacker, 128 Ind. 77; Spears v. Lawrence, 10 Wash. 368; Herrell v. Donovan, 7 App. Cas. (D. C.), 322.
Another rule, however, is to the effect that “ a surety for the completion of work to be performed by the principal, where, by the terms of the contract, the principal is to be paid by instalments, is discharged if the principal is paid faster than the contract provides. The surety is thereby deprived of the inducement which the principal would have to perform the contract in due time. . . . And it is no answer to say that it is for the advantage of the surety, or that he has sustained no prejudice.” Brandt, Suretyship & G. (2d ed.), § 397. Mr. Justice Stoet, speaking of the contract of suretyship, in Miller v. Stewart, 9 Wheat. 680, says: “Nothing can be clearer, both upon principle and authority, than the doctrine that the liabilitj*- of a surety is not to be extended, by implication, beyond the terms of his contract.
We have been led to make these quotations from the authorities, because appellant has asserted the rule to be that, if the contract “ is varied in the least particular, the surety is released.” We understand the rule to be as above stated, and which, we think, will be' strengthened by the authorities hereinafter referred to. In Clagett v. Salmon, 5 Gill & J. 314, the supreme court of Maryland says: “It is, then, upon the principle that the contract of the surety is changed or varied to his prejudice and without his consent, that the surety is discharged. It is because the creditor has disabled himself from fulfilling the duties and obligations which he owes to the surety that he is released from his responsibility.” In Preston v. Huntington, 67 Mich. 139, the defendant Platt became surety for the payment of rents by the other defendants. Afterwards the lessor, without consent of the surety, agreed with the lessees to reduce the rent $25 per month. Touching this point, the opinion contains the following: “ The reduction of the rent under the new agreement could not affect George W. Platt, Jr. It did not release him from his obligation any more than if the amount óf such reduction had been indorsed as a payment upon the lease. No new terms or obligations were imposed by the new agreement. The lessors simply waived their right to $75 a month, as provided in the lease, and agreed to take $50 per month instead. George W. Platt could not complain of this.”
The quotation from Brandt on Suretyship heretofore made, to the effect that, if the principal is paid faster than the contract provides, the surety is discharged, is somewhat misleading when compared with the authorities cited to support it. The principal case cited, and which has been referred to very many times by the courts in this country, is Calvert v. Lon
. All of these cases, except the last one, are based upon the fact that the owner failed to keep the reserve provided for in the contract. The effect of this stipulation in the contract, as suggested in Calvert v. London Dock Co., was to urge the contractor to perform the work, and to leave in the hands
An extreme case, and one confidently relied on, is Simonson v. Grant, 36 Minn. 439. Plaintiffs furnished building-material to the contractors, and were sureties for the faithful performance of the contract. After the work was commenced and the first instalment paid, the owner so far departed from the terms of the contract that payments were made by him to divers persons on the order of the contractors, without reference to the state of the work or the terms of the contract, and in some instances to an amount exceeding the instalments due as stipulated therein, and in anticipation thereof. The language of the decision is as follows: “ In anticipating the instalments and otherwise disregarding the conditions of the contract, they were practically so modified that it was not the contract to the performance of which
Thus, it will be seen that there must be a substantial or material variation of the contract that will operate to release the surety. In Bell v. Paul, 35 Neb. 240, it was admitted that the owner of the building paid the contractors §300 seven days before an estimate was due. This sum was advanced to or loaned to the contractors with the understanding that the sum should be refunded when the next estimate was made. The court said: “We do not yield assent to the proposition that the advancement of the $300, under the circumstances, released the sureties. It was not, in fact nor in law, a payment upon the contract, but a mere loan of that amount until an estimate ivas obtained, and which did not in any manner violate the contract or discharge the sureties.” In Robinson v. Hagenkamp, 52 Minn. 101, it was held that payments to the defendant’s principal of proper amounts, but at intervals two weeks different from that provided in the contract, were immaterial. In a case in the state of Washington, the owner accepted an order given by the contractor to be paid out of the next estimate, but, at the time of its acceptance of the order, paid the ma-terialman a portion of the amount due on the order. This was held not to relieve the sureties. De Mattos v. Jordan, 15 Wash. 378.
When'we come to apply the principles to be extracted from the foregoing authorities to the case at bar, we have no difficulty in saying that the findings and conclusions of the trial court must be sustained. We base this conclusion upon the fact that the alleged advances were so inconsiderable and trifling in amount as not to constitute a material variation of the contract, and upon the further fact that plaintiff is not in a position to insist upon release, because
It is undisputed that the second estimate on the contract was due July 1st. The fact that defendant, on the 2d, advanced some money to the men employed on the work, so that they could fittingly celebrate the Fourth, in anticipation of the estimate then due, is not at all significant. No doubt that all parties understood that the estimate was then being made or would be made shortly thereafter. It was in fact made and submitted on the 3d. To hold this to be a substantial alteration of the contract would be going to the extreme limit of technicality.
The court found, upon ample evidence, that these alleged advances were not made under the contract, but were personal loans to Pickering. While transactions of this kind are supported by some of the authorities cited, we prefer to rest this decision upon the holding above stated.
By the Gourt.— The judgment of the circuit court is affirmed.