Wilkinson v. McKimmie, 36 App. D.C. 336

Wilkinson v. McKimmie

36 App. D.C. 336 | D.C. Cir. | 1911

Mr. Chief Justice Shepard

delivered the opinion of the Court:

There are nineteen assignments of error in this case, some of which have been argued together. Under the first group the contention is that while the declaration counts upon the contract and bond under seal to a. certain point, and that far sounds in debt, it does not stop there, but proceeds to allege the alterations of the contract in respect of the change in excepting the two lots from the conveyance to Horton, and in respect of the extensions of time for completion, without alleging.that the-said alterations were under seal.

*345For this reason it is contended that the declaration sounded in assumpsit, and the instruments under seal are not admissible thereunder. We perceive no merit in this contention. The declaration complies with rule 27 of the supreme court of the District, in that it contains a plain statement of the facts necessary to constitute the cause of action, and is substantially in the form of covenant. It sets out the contract and bond under seal and the breach of the obligation. In anticipation of the defense founded on the extension of the time for performance, it alleges the consent of defendants thereto. The .action is on the bond given for the performance of the contract that was not performed. The liability of the sureties would be discharged by the extension unless it could be shown that they had consented thereto. It was proper and necessary to allege this consent in order to recover on the bond. No additional claim was founded on those instruments. In this respect the declaration was similar to those in two of the cases relied on by defendants, —the first in support of this contention and the second on the question of discharge by reason of the alteration of the contract in the matter of the omission to convey the two lots. Phillips &c. Constr. Co. v. Seymour, 91 U. S. 646-652, 23 L. ed. 341-344; United States v. Freel, 186 U. S. 309, 310, 46 L. ed. 1177, 1178, 22 Sup. Ct. Rep. 875. Phillips &c. Gonstr. Co. v. Seymour was an action of covenant for part performance of a contract under seal, the complete performance of which in time had been prevented by the defendant. An additional recovery was had on a special finding by the jury upon evidence of extra work done under an additional parol agreement. The court said: “There is no allegation of this promise in the declaration, which is an action of covenant on the sealed agreement. There is no allusion to it, or provision for it, in that instrument. It is found by the special verdict to be a promise, and the record shows that it was by parol.” It was held that assumpsit would be the proper action on this promise, and that it could not have been joined, if attempted, with the action of covenant., under the common-law rules of pleading prevailing in the State where the action had been brought. Judgment on the *346special verdict was reversed, but that founded on tbe sealed contract, witb proof of waiver of performance in time, was affirmed.

Nor do we coincide with tbe view that tbe sureties were discharged by tbe change in tbe performance of tbe contract by which tbe two lots were excepted from the conveyance to Horton. A material change in a contract witb a principal without tbe assent of tbe surety, even though it may prove to bis advantage, discharges tbe latter. But an immaterial change that does not put tbe surety in a position different from that be before occupied has no such effect. Roach v. Summers, 20 Wall. 165-169, 22 L. ed. 252, 253; Cross v. Allen, 141 U. S. 528-537, 35 L. ed. 843-849, 12 Sup. Ct. Rep. 67; The Beaconsfield, 158 U. S. 303-312, 39 L. ed. 993-996, 15 Sup. Ct. Rep. 860.

Tbe exclusion of tbe two lots from tbe conveyance to Horton, at bis suggestion, was a mere matter of convenience that worked no change in tbe positions, rights, or obligations of tbe parties.

In form tbe contract was to convey tbe whole of tbe land to Horton, who was to reconvey tbe two lots and erect certain bouses upon them, — tbe same to be free of any and all liens and encumbrances. Its real effect was that Horton was to have title to tbe remainder of tbe land, in consideration of bis erecting tbe two houses on tbe lots for plaintiff. Notwithstanding tbe form of the contract, upon conveyance of tbe whole,- the equitable title to this part would remain in tbe plaintiffs.

Tbe defendants’ second prayer was properly refused, because it was not necessary that plaintiffs should prove that they bad a good title to tbe land described, tbe same not having been put in issue, or even questioned. Nor was it necessary to prove authority for tbe subdivision of tbe property into tbe small lots upon which Horton intended to erect a series of bouses. Tbe two small lots to be reconveyed to plaintiffs were expressly provided for. It was not error to submit to the jury tbe consideration of tbe evidence regarding the execution of tbe two extension agreements. Kemp admitted that be signed tbe latter paper, and would not say positively that be did not sign tbe other. Nor did Wilkinson deny tbe execution of either. He *347did not recollect the fact. One signature looked like his. The other he would not acknowledge as his. He compared them with signatures to the other papers, and said, “Those signatures speak for themselves.” That he relied upon an apparent difference between these several signatures is shown by the request of his counsel that the jury should take all of the signed papers with them for consideration. Moreover, the letter of Ambrose notifying them of the default of Horton, and of the near approach of the expiration of the extension acceded to by them, was not responded to or denied. While the testimony was meager, we think it was sufficient to be submitted to the jury, who specially found that they executed each paper, and also that they had knowledge of the omission to convey the two lots to Horton, when each was executed.

That the action was discontinued as to Horton, who it seems had become insolvent, presents no ground for arresting the judgment. Sec. 1211 of the Code [31 Stat. at L. 1380, chap. 854] simply provides that one action may be sustained, and judgment, recovered against all or any joint and several obligors. It does not require that this shall be done. We have considered all of the points involved, without separately noting the several unnecessary assignments of error, and find no ground for reversal. The judgment will therefore be affirmed, with costs.

Affirmed.

On application of the appellants, an appeal to the Supreme Court of the United States was allowed, February 9, 1911.