Nichols v. Palmer , 48 Wis. 110 ( 1880 )

Obtoit, J.

It is clearly apparent, from the transaction itself, that the respondent Yanderlip was a mere surety on the bond conditioned for the performance of the terms of the lease on the part of the respondent Palmer. His liability, therefore, was strict, and depended exclusively upon the failure of Palmsr to perform the conditions of the lease. It is also apparent that the lease, as such, although not formally surrendered or discharged, had been fully discharged and superseded by a new agreement between the appellant and Palmer, entered into April 19, 1877, which was the result of a full settlement of all the matters of the lease, and the consideration of the surrender of the leasehold estate one year before the time fixed by. the lease, and constituted a new and independent agreement, for the performance of which Yanderlip is not in any way bound.

By every reason, and by all of the authorities, under such circumstances, Yanderlyp was discharged from all liability as surety on the bond by the material alteration of its conditions by this new agreement; and it is self-evident that he never made himself liable by reason of Palmer’s default in not complying with the terms of an agreement not mentioned in of contemplated by the bond.

“ The obligation of a surety on a bond is strictissimi juris, and nothing can be taken against him by inference or intendment.” Smith v. Lockwood, 34 Wis., 72.

In Sage v. Strong, 40 Wis., 575, Mr. Justice LyoN, in bis opinion, says: “ The rule is elementary, and of almost universal application, that a surety for the performance of a contract or obligation is discharged if such contract or obligation be materially changed without his consent.” It is needless to multiply authorities after this decisión, and in a case perfectly parallel in principle to this. Without considering other reasons, we think, from this view of the case alone, the nonsuit was properly granted.

By the Court. ■ — The judgment of the circuit court is affirmed, with costs.