Swasey v. Doyle

88 Mo. App. 536 | Mo. Ct. App. | 1901

GOODE, J.

While the contract of a surety must be construed like any other, in order to ascertain its meaning, the doctrine is trite that he has the right to stand on the very terms of the agreement as thus ascertained, and if it be altered without his consent, he is discharged. Interpreting the allegations of the petition in the best possible light for the plaintiff, and deducing all the inferences from it in his favor we can, the case stated is, that he was at liberty to make any deviations or alteration in the plan, form or construction of the brickwork which Doyle was to furnish the material for and do; if any difference in the expense was thereby occasioned, an.addition to or abatement from the original price should be made. A generous construction would have to be put on that stipulation to allow the plaintiff to substitute other máterial instead of what the contract called for/ It is hard to find in the phrases used any warrant for changing the material. But granting that the words of the contract were broad enough to permit a change to old brick instead of new for the inside courses of the walls, with a corresponding reduction of price, we are confronted by this insuperable difficulty; the pleader charges that the consideration to the contractor for knocking one thousand dollars off the amount which he was to receive, was not alone the fact that old and cheaper material was substituted, but the further fact that Swasey had saved him two dollars per thousand on the price of the face brick used in the buildings which Doyle had purchased from the Hydraulic Press Brick Company. The averments are susceptible of no other meaning than that Doyle deliberately abated one thousand dollars from the compensation he was to receive, partly because old brick were used, and partly because the plaintiff had done him the service of getting the Hydraulic Press Brick Company to abate something from the price Doyle had agreed to pay it for face brick. It will scarcely bear discussion, that the original agreement between Swasey and Doyle, for the performance of wbicb the American Bonding and Trust Company became surety, did not contemplate such a possible change in the price to be paid for the work for such a consideration, and that the provision, allowing the plaintiff to make deviations from the plan, form and construction of the work with an' addition or reduction from the original price on account thereof, does not embrace this new arrangement. It was in every sense of the words a new -contract based on a new consideration, instead of an alteration of the old one. We may grant that the price might be reduced because of a diminution of the cost of labor and material effected by the changes, without discharging the surety, but it certainly could not be reduced without having that result, because Swasey secured advantageous terms for Doyle in the latter’s purchase of material.

The cases cited by the appellant do not, in the least, support his contention; for the changes from the first agreements were made, as the opinions justly say, in strict accordance with their terms. Beers v. Wolf, 116 Mo. 179; Howard County v. Baker, 119 Mo. 379. The present controversy is like Warden v. Ryan, 37 Mo. App. 466, with this exception: in that case the agreement necessitated a large addition to the original compensation and tended to the safeguarding of the surety; whereas here, nearly one-fifth of the price was deducted, thus weakening the contractor’s ability to meet his obligations and increasing the surety’s risk.

The judgment is right, and with the concurrence of all, ia affirmed.