Cudahy Packing Co. v. Shepard , 37 Tex. Civ. App. 1 ( 1904 )

KEY, Associate Justice.

This is a suit upon a bond given by J. W. Shepard, as principal, and H. T. Williams and Brooke Smith, as sureties, for the faithful performance by Shepard of the tenth section of a written contract between Shepard and the appellant.

The defendant, Shepard, made no resistance, and the plaintiff obtained judgment against him. The defendants, Williams and Smith, in addition to their general denial, averred in their answer that plaintiff and the defendant, Shepard, without their consent, had changed the original contract in material matters, thereby releasing Williams and Smith, who were accommodation sureties.

After hearing all the testimony, the trial court instructed a verdict for Williams and Smith, and the plaintiff has appealed.

It was shown by clear and uncontroverted testimony that in material particulars the plaintiff and the defendant, Shepard, had changed the terms of the original contract. It was also shown by the same character of testimony that alleged sales by the defendant, Shepard, to the Western Produce and Provision Company were, in fact, no sales within the meaning of the contract. Shepard, himself, and as sole owner, conducted the business in the name of the Western Produce and Provision Company, and the plaintiff had knowledge of that fact. Hence, we hold that sales to the latter company, if sales at all, were sales made to Shepard, and were not such sales as were contemplated by the contract and covered by the bond.

The trial judge properly instructed a verdict for the sureties, and the judgment rendered upon that verdict is affirmed.

Affirmed.