Clark v. Sawyer , 121 Mass. 224 ( 1876 )

Lord, J.

It is not necessary, in the view which we take of this case, to determine whether the erasures, made by the plain tiff in the agreement declared on, were a material alteration ci the agreement; because the agreed facts, which led to the erasures, disclose a defence to the action, entirely independent of the alteration of the instrument. The agreement declared on is an entire agreement, in which Charles L. and Erastus 0. Sawyer were principals, and the appellants were sureties. The agreement was not simply to deliver the property named therein on demand, with the legal conclusion that in default of such deliv cry the defendants should be held to pay such damages as ths4) plaintiff should thereby sustain. The agreement was on demand to deliver the property in good order, &c., “or in case of our neglecting or refusing to deliver the property as aforesaid, we will pay on demand to the said J. H. Clark, or his lawful representatives, the amount of debt and costs which shall be recovered in the said suit,” (the suit in which the property had been attached as the property of the principal defendants,) “ together with all lawful fees upon such execution or executions as may be placed in the hands of said J. H. Clark, or his legal representatives.” A large part in value of the attached property was under mortgage to one Pierce. We are not called upon to state what would have been the result, had Pierce taken possession of the articles to which he made claim by replevin or otherwise ; for the case finds that, upon demand being made by Pierce upon the plaintiff, he voluntarily surrendered the property to Pierce. It is not material that this was done with the consent of the principal defendants, for the case finds that the appellants, who were sureties only and known to the plaintiff to be sureties only, gave no consent to and had no knowledge of the transaction. The plaintiff then, voluntarily and without the consent of the appellants, put it out of the power of the defendants to perform their agreement. Having done this, he cannot now call upon them to perform it; and, the contract being an entire one, and he, having by his act made it impossible for the defendants to perform it as an entire contract, cannot call upon them to perform that part, of which he has not prevented the performance. Their reply is conclusive, that such is not the contract into which they entered. We think, therefore, without regard to the question of alteration, that there must be

Judgment for the defendants.