Miller v. Eccles

Per, Curiam, The appellant, James M. Eccles, became the surety of H. L. McLean upon a building contract which the latter had entered into with a Mr. Miller. Upon that contract the appellant indorsed a guarantee that Mr. McLean would well and faithfully perform his part of the contract. The suit below was brought upon that guarantee. The appellant defends upon two grounds. He contends in the first place that he is not bound, because Mr. Miller paid the money to his contractor more rapidly than he should have done. We fail to see any force in this objection. The contract between Mr. Eccles and Mr. Miller does not specify when the money was to be paid. There was nothing to prevent Mr. Miller paying the money as it was wanted by his contractor, unless he had been notified that the latter was not performing his contract, and that by such payment the surety would be put in peril. There is no evidence that the mode of payment affected in any way the legal rights of the surety. It was also contended that the contract between McLean and Miller had been modified in material parts. If there was any change in the contract that would affect the surety, or increase his liability, he would be discharged. The contract, however, provides that changes may be made, and if the modifications referred to were covered by the contract, the appellant has no cause of complaint. This question was fairly submitted to the jury under proper instructions. Judgment affirmed.