Smith v. Loomis

Peters, J. By written agreement, dated January 1, 1878, Benoice Loomis hired a mill of the plaintiff for every alternate two weeks, from January 28, to June 1, 1878; the rent to be a certain sum payable for each number of thousands of feet of lumber that might be sawed by Loomis at the mill. On February 16, 1878, the same parties made another agreement, by [505] which the lessee was to retain the mill under the terms of the lease long enough only to saw certain specified lumber, and to relinquish possession for any balance of the term. For this relinquishment the lessee received a credit of thirty dollars, towards the rent already due to the lessor. The defendant in writing, guaranteed for Benoice Loomis the first agreement, and verbally assented to the second. He is sued as guarantor for the balance of rent due for lumber sawed at the mill during the period named. The alleged defence is, that the second arrangement was a new and independent contract, substituted for and canceling the first one, and not binding upon the defendant, on account of the statute of frauds. The words of the second agreement, literally construed, have some tendency to warrant the interpretation contended for, but we think the intention of the parties was merely to waive a part of the first agreement, by an amendment thereto. The precise and only” difference between the two agreements is, that, under the original agreement, the lessee was to have the mill until June 1, 1878, and, under the amended agreement, he was not to occupy^ so long as that, unless it took that time to saw certain quantities of lumber specially described. The change might lessen the period of occupation or it might not. It might lessen, while it could not increase the defendant’s liability. It preserves his rights as they stood upon the original undertaking. So new obligations are imposed. The old ones are merely cut down to some extent. The original guaranty promised that the principal should pay a specified rate for all lumber sawed by him at the mill prior to June 1, 1878. The plaintiff asks no more now. There was no necessity of the plaintiff’s declaring upon the second contract or putting it in proof. Here then is not a new or collateral contract, the operation of which can allow the defendant to invoke the statute of frauds. A surety can waive á full performance as well as a principal can. The principles of waiver and estoppel may apply to sureties as well as to other parties to contracts. If A. leases a mill to B. for twelve months at a monthly rent, and C. in writing guarantees [506] the rent, we see nothing to prevent B. and C. assenting with A. that the lease might be terminated at the end of half that period of time. The statute of frauds cannot affect such an act. That is substantially the case presented to us. There is strong reason to hold that, even without the consent of the surety, the contract was not invalidated. But we are not called upon to say as much as that, as the jury found that his consent was given. Rice v. Filene, 6 Allen, 230; Insurance Co. v. Sedgwick, 110 Mass. 163; Cambridge Savings Bank v. Hyde, 131 Mass. 77. Exceptions overruled. AppletoN, C. J., Walton, Barrows, Daneorth and Virgin, JJ., concurred.