Johnson v. Flint , 34 Ala. 673 ( 1859 )

B. W. WALKEB, J.

The appellants were the sureties of Kirk on an appeal bond, the condition of which was, that Kirk shall “ prosecute to effect his suit in the supreme court, and pay and satisfy such judgment as the supreme court shall render in the premises.” The obligation of tbe appellants was for the performance of certain acts by a third person. In reference to obligations of this description, it is a well settled principle, that if the non-performance of the stipulated acts was occasioned by tbe conduct of the creditor, or was tbe result of an agreement between him and the principal obligor, tbe sureties are discharged.

This plain principle is conclusive of this case. The principal obligor was prevented from proceeding in the attempt to prosecute his suit to effect, by the agreement entered into between him and the obligee, without the knowledge or consent of the sureties. By thus interfering,, and becoming a party to an agreement binding Kirk not to prosecute his appeal, Flint must be held to have waived the obligations in his favor imposed on the sureties by the terms of their bond.

The sureties guarantied the performance by their principal of a particular contract, and engaged for nothing more. "Without their consent, and by an agreement between the creditor and their principal, in which mutual advantages are secured to each other, the contract into which the sureties entered has been varied. Now, nothing is more clear than that the surety will be discharged, at common law, in all cases where his responsibility is merely for the fulfillment by another of a contract which has been varied, without the consent of the surety, before a breach has occurred. In such case, the new or substituted obligation is not that which the surety undertook should be performed ; and the party who seeks to make him liable for the breach of the original agreement, has, by his own act, prevented, or, at least, waived its performance, by binding the principal obligor to do something else, in the place of that for which the surety stipulated. 2 Am. Lead. Cas. 284; Watriss v. Pierce, 32 N. H. 560; Woodcock v. Oxford Co., 21 Eng. L. & Eq. 289; Sasscer v. Young, 6 G. & J. 243; McKay & McDonald v. Dodge & McKay, 5 Ala. 388.

In the Trustees of Section 16 v. Miller, 3 Ohio, 261, the obligation of the defendant was for the performance by a.tenant of certain stipulations in his lease during the continuance of the term; and the defense was, that the plaintiffs had entered upon and dispossessed the tenant for a breach of condition, before the period at which the stipulations in question were to have been fulfilled. The court held, that as by the terms of the contract, which •was to be performed on the land, the tenant had the whole term for its fulfillment, and, by the entry of the plaintiffs, performance had been rendered impossible, they were not entitled to recover for the breach. In the course of the opinion, the court thus stated the principle which controls this case: “If he who is to be benefited by the performance of a contract, is the cause why it is not performed, the contract is dissolved, and the party bound is discharged from his obligation, and will be in the same situation as if he had performed it.”

In Bowmaker v. Moore, 3 Price, 214, an injunction was granted, to restrain a landlord from proceeding at law against the sureties of the tenant on a replevin bond, because there had been (without the consent of the sureties) an agreement between the landlord and tenant to refer the matters in difference, whereby the performance of the condition of the bond (to proceed with effect) had been suspended. In that case the court said: “ This question lies in a narrow compass. The bond was, of course, conditioned that the principal should prosecute his writ with effect against the landlord. The action of replevin is in fact eutered; but afterwards an agreement was entered into between the landlord and the tenant, without the concurenee of the surety, whereby the tenant is precluded from proceeding according to the condition. By that agreement, a mode is chalked out for ascertaining and arranging their mutual demands, and in the meantime all proceedings are to be stayed; so that the tenant is restrained, by the act of the landlord, from doing that which his surety engaged he shall do. It turns out, indeed, that the same parties afterwards agreed that the action shall proceed, so as to give the landlord his original remedy against the surety; but that is what we cannot suffer after what has been done. When the agreement of reference was executed, the bond, as against the surety, was functus officio.”

In the present ease, before any breach had taken place in the condition of the bond, the creditor and the principal, without the consent of the sureties of the latter, entered into a new agreement, founded upon a sufficient consideration, by which they stipulate for mutual advantages to each other. The benefit secured to Kirk by this agreement was, that a certain mill and machinery were to be his property; while, on the other hand, he was by it precluded from making any .effort to perform the act for which his sureties had become bound — namely, the prosecution of his suit in the supreme court to effect. No matter how numerous the errors disclosed by the record in' that case, this new agreement effectually prevented their correction by this court.

If there had been nothing beyond simple non-action on the part of Kirk — a mere waiver of his rights, or a failure to assign or insist- upon errors — the sureties would be without defense. But the judgment which he has failed to satisfy was not the result of his simple failure to prosecute his -suit, or of his waiver of his rights in the appeal; but was, on the contrary, the direct consequence of a valid agreement, which would have been broken if he had made any attempt to prosecute his appeal to effect. This is the substantial distinction between this case and all of those cited by the counsel for the appellee.

Judgment reversed, and cause remanded.