Coddington v. Brown , 123 Ark. 486 ( 1916 )

Kirby, J.,

(after stating the facts). (1) The court erred in its refusal to render judgment against surety M. W. Murray. '“Where several parties are sued on a contract a successful plea by one going to the validity of the contract, or to the satisfaction or discharge of the debt, operates as a discharge to all the defendants but it is otherwise where the plea goes to the personal discharge of the partv interposing it.” Hall v. Bonville, 36 Ark. 494: McDonald v. Smith, 24 Ark. 614; Gunnells v. Latta, 86 Ark. 304.

In Simpson & Webb Furniture Co. v. Moore, 94. Ark. 347, the court held, (quoting syllabus):': “A separate answer of one defendant will be held to inure to the bene^ fit of all the defendants when it; states a defense comtoion to' all of them. ’ ’

Although it is thue that the same state- of ‘facts as to the change in the terms of the lease contract relied upon by appellee Brown in defense of the suit’, existed’ as to his co-surety, said M. W. Murray, it does not necessarily follow that he was discharged from liability as a ¿surety thereby since he would- not have been if he consented'to the change. Appellee Brown answered, setting up this defense and alleging that a change of, the terms of ,fhe. contract had been made without his consent. This was personal to him and the. court erred in rendering judgment discharging both him and his co-surety said M. W. Murray, who had failed to answer., . . , , ..

(2)> Tt can not be said as contended-by appellee that the lease was terminated after the execution of the new agreement providing for the -selling -of the old picture machine by the lessor and the, installation of the new .one • furnished by appellees for the execution of this agreement can not be said to be a refusal to furnish the motion picture machine agreed to be and which was in fact furnished under the terms of the lease. The lesso’r did not fail to comply with his contract to furnish this'machine because he consented-to the sale of it at the instance of the lessees and the application- of; the price received, to the payment of the purchase price of the new machine installed by the lessees in its place. The court is of opinion however that the transaction constituted á material change in the lease contract which released the sureties bn the bond from the payment of the rent if done without their consent. “'The courts have’long held,” as said 'in Snodgrass v. Shader, 113 Ark. 429, “that any material 'alteration’in the terms of a contract, whereby a súretv is bound, discharges the surety if he has not consented to the change, and this is so even if the alteration, be for the benefit of the surety: for, although the principals may change their contract to shit their purpose or convenience,, they can not bind the surety thereto without his consent, and, as the new contract abrogates the old, the surety is discharged from all liability unless he 'has consented to the alteration. (Citing cases.) ”

The 'building,- fixtures and appliances including the Edison machine for exhibition of pictures, were leased for the purpose of operating a moving picture show and the sureties upon the failure or refusal of their principals to perform the lease .contract, could have- undertaken it themselves, being bound to its performance. They may have been willing to be bound for the payment of the-rent upon the moving picture theatre, thinking their principal would be able out of the money realized from its operation to pay the sum agreed upon and expenses, .when they would not have been willing to sign the bond had they known that a new machine for exhibition of the pictures was to be installed at an additional expense to their principals of $185. If the phrties to’ the lease had -agreed to sell the furnishings in the theatre leased and purchased pthers at a cost to the lessees of say $5,000 more than the' price received for the old furnishings and fixtures, it would certainly have constituted .a material change in the conditions and reduced the liability of the lessees accordingly to perform their obligation for which the- surety was bound and should discharge the surety no less than if the terms of the contract itself were expressly changed. Moreover, -said contract was materially altered by the agreement and installation of the riew Powers 6-A machine' in lieu of the Edison disposed of which they were bound to return-, providing for the payment of the price for which it sold or the return of the new machine in its stead. . . '

' ' If follows that no error was committed in the rendition of the judgment in favor of appellee Brown discharging him from liability and same is affirmed' as to him, but'the judgment of dismissal as to said M. W. Murray being erroneous is reversed and the causé remanded with directions to enter a judgment in appellant’s favor against him.