37 Mo. App. 466 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The liability of a surety depends on the identity of the contract and its sirictissimi juris. If the contract between the principals be altered without his consent, so as to destroy its identity, he is discharged, and it is immaterial whether the alteration be for his benefit or not, because he has a right to stand upon the very terms of his agreement. This proposition is so firmly imbedded in the law of principal and surety that no considerations of apparent equity áre permitted to disturb it, however great the hardships may be which, in individual cases, appeal for a modification of the rule. The unquestioned law, thus stated, we are called upon to apply to the undisputed facts of this case.
The plaintiffs entered into a written contract with Francisco and Sanguinet for the erection by the latter of a building at an agreed sum of fifty-five hundred and sixty dollars to be paid in certain installments. The defendant became the surety of the builders, and bound himself to the faithful performance of the contract by them, and to their delivery of the building, discharged from all claims, liens and charges, within a specified time. The building was not delivered within that time, nor was it delivered free from lien claims. The plaintiffs were compelled to pay, and did pay, these claims, and thereupon brought the present action against, the defendant surety, who interposed the defense, that the original contract had been altered so as to increase the consideration to be paid by the plaintiffs to his principals for the erection of the building; that thereby a new contract was substituted for the one, for the performance of which he had become surety; all of which was done without his consent.
It appeared from the plaintiffs’ evidence that, within two days after the contract was signed, Sanguinet, one
The architect took the written contracts which had been executed in duplicate, and changed them by inserting sixty-two hundred and nineteen dollars and fifty cents as the consideration to be paid, and by striking out fifty-five hundred and sixty dollars, and by making corresponding changes in the installments. This he did without express authority from plaintiffs and without their knowledge. The payments of the various installments were subsequently made by the plaintiffs in Conformity with the figures inserted by the architect. There was no evidence that the defendant knew of this new agreement or assented thereto.
All these facts appearing in the plaintiffs’ evidence, the defendant at the close of plaintiffs’ case requested the court to instruct the jury that the plaintiffs could not recover, which instruction the court refused.
The learned counsel for plaintiffs, aware of the ' danger of the situation, labors exhaustively to show
An attempt was made by plaintiffs’ counsel to show that this additional six hundred and fifty-nine dollars and fifty cents was a mere gratuity or bonus, and an instruction was asked on that theory. There is nothing in the evidence to support that view, or to authorize the jury to • draw that inference legitimately from anything in the plaintiffs’ evidence. Whether it was a gratuity depends not on the fact how the plaintiffs’ viewed it in their own minds, but whether, under the uncontroverted facts, they were under a legal obligation to pay it, after they agreed to pay it. The contractors insisted on an agreement for the payment of this additional amount, owing to a mistake in the original bid, and as a condition precedent to their entering upon the
These considerations necessarily lead to the conclusion, that the court erred in not instructing the jury, at the close of the plaintiffs’ evidence, that, upon the case made, the plaintiffs could not recover; and further erred in submitting to the jury the question whether the additional consideration agreed to be paid by plaintiffs was amere gratuity. We find no errors in other parts of the record, but for these errors we are bound to reverse the judgment, notwithstanding the seeming hardship of the case.
Judgment reversed and cause remanded.