Lancaster v. Barrett , 1895 Pa. Super. LEXIS 3 ( 1895 )

Opinion by

Orlady, J.,

On April 8, 1892, Peter S. Barrett, a carpenter and builder, entered into an agreement in writing with Richard Lancaster to “ erect, build, set up and finish one brick messuage or tenement with the appurtenances,” “ and compose the same with such stone and brick, timber and other materials of the size, kind and quality as particularly mentioned and set forth in the accompanying specifications (which were drawn in detail and attached to the agreement and signed by the principal parties), for the sum of $1950.”

At the same time Peter S. Barrett, as principal, and William Barrett, as security, executed and delivered to Richard Lancaster a bond in the sum of $2,000, reciting: “ Whereas, the said Peter S. Barrett and Richard Lancaster did, on the day of the date hereof, enter into an agreement for the erection and construction of a certain brick messuage or tenement, with the appurtenances, for the said Richard Lancaster, on a certain lot or piece of ground, situate on the northeast side of Howorth street, in Frankford, as therein particularly mentioned and recited, as by reference to the said agreement and the terms and conditions thereof will fully and at large appear.” The agreement, specifications and bond were prepared by a conveyancer from a lead pencil memorandum, and William Barrett being unable to read or write, the papers were read and explained to him, when, in the presence of Peter S. Barrett and Richard Lancaster, he signed the bond as surety. The following day, the plaintiff (Lancaster) discovered that two items had been omitted from the type written specifications attached to and made part of the agreement;

He testifies : “ I went down and saw Peter Barrett, and he says, that is all right; I know that is on the plan; I said we want it done right; so he wanted to put it on there and I would not let him; I said, no ; we will have it done right; we will go up to Mr. Stearne; so I went up to Mr. Stearne, and Mr. Edwin Stearne would not put it there after the agreement was signed; this was after the execution; then Edwin Stearne says, no; you better put it in there yourself, Pete, and it will be better ; and he put it in there himself.”

The words interlined by Peter S. Barrett were “ sliding doors between hall and parlor,” and “ bath room.” The lead pencil sketch was not in any way a part of the agreement. William Barrett, the surety, makes defense to this action on the bond, claiming that the interlineations were material and unauthorized by him.

On trial in the court below two questions were submitted to the jury:

1. Was it a material alteration?

2. Was it made with the knowledge and consent of William Barrett, the surety ?

The rights of the surety under the evidence were matter of law and not for the jury. There was no conflict of testimony ; every essential • fact was found in plaintiff’s testimony. The authorities are clear. In Craighead v. McLoney, 99 Pa. 211, the court say: “ It is evident that any tampering with the instrument which imposes upon the party a burden or a peril which he would not else have incurred, is an injury to him, and therefore material.”

In Bensinger v. Wren, 100 Pa. 500, the court declare any alteration of a contract by the principal parties, without the assent of the surety, is fatal to its validity as against the surety. Even if he sustains no injury by the change, or if it be for his benefit, he has a right to stand upon the very terms of his obligation, and is bound no further. Any unauthorized variation in an agreement which a surety has signed, that mey prejudice him, or may substitute an agreement different from that which he came into, discharges him.

The inserted words meant that an additional duty was imposed upon the contractor.

The plaintiff regarded them of importance,- in requiring their addition, to secure to him the use and advantage of something not previously exacted of Peter S. Barrett. After their insertion, the contractor was required to make and place two sliding doors and additional wainscoting in the bath room, not mentioned in the agreement as signed by and explained to the surety. Inspection of the paper showed the contract was materially changed, and the principal parties admitted it was designedly done for the purpose expressed by the words.

The legal effect, under this evidence, was for the court alone ; and there being nothing in the case, showing knowledge or assent of William Barrett, the surety, to the material alteration of the contract as signed by him, the jury should have been directed to return a verdict in his favor, under the principles stated in the charge of the learned court and authorities herein noted.

The eleventh assignment of error is sustained, which sufficiently disposes of the case without considering the others.

Judgment reversed.