Singer Manufacturing Co. v. Hibbs

Hall, J. — The plaintiff asked the court to give certain declarations of law, which the court refused to give; and, against the plaintiff’s objections, the court gave for the defendant certain declarations of law. All those declarations of law, both given and refused, have been omitted from the foregoing statement of the case, for the reason that, if upon the facts contained in said statement the judgment of the court was correct, then its action in giving and refusing said declarations of law was, also, correct, and if said judgment was erroneous, then said action as to the declarations of law was, also, erroneous. The question, then, is, upon the facts stated, should the court have found for the defendant % It is very clear that the bond executed by the defendant as surety of Warriner is to be construed in connection with the first contract entered into by Warriner with the plaintiff. The bond and said contract were not only executed on the same day, but in the bond the fact of such contract having been made was recited as a part of the condition upon which the obligation- of the bond depended. It is a principle of law, too well settled to require citation of authorities in its support, that “the liability of the surety cannot be extended beyond the plain terms of his contract. He is bound by the conditions of his obligation, and no further. His undertaking will extend to whatever is comprehended within the scope and limits of his engagement, but to nothing more.” State to use, etc., v. Boone et at., 44 Mo. 262. The surety’s liability cannot be extended by implication. By the first agreement it was agreed between the plaintiff and Warriner that said agreement might be altered, amended, or changed, in writing, with the consent of both parties, and that it might be terminated at the pleasure of either party. By the bond the liability [579] of the defendant, as Warriner’s surety, was made to extend to any failure on the part of Warriner to discharge “Ms duty as such agent, as shall be specified in any and all agreements, which he has or may hereafter make ” with the plaintiff. This language of the bond is extremely general. But the words “such agent,” clearly refer to the agency ■created by the first agreement. And had that agreement been terminated in a formal manner, and had the plaintiff then, without the knowledge and consent of the defendant, again employed Warriner in any capacity, at :any place, it is clear to us that the defendant would not have been liable on the bond under the new employment. Amicable Mutual Life Insurance Company v. Sedgwick, 110 Mass. 166. We are unable to perceive any real difference between the supposed case and the case at bar. The relation between the plaintiff and Warriner was not formally terminated, but an entirely new contract of employment was entered into between them. The old contract was, in fact, ended. Not only were the duties of Warriner changed by the new contract, but the locality of his employment was changed. The defendant might have been willing to guarantee the discharge by Warriner of his duties as plaintiff’s agent at Mound City, and yet not have been willing to have guaranteed the discharge by him of said duties at Fort Scott. The language of the bond touching future agreements, we think, referred to the alterations, amendments and changes in the first .agreement authorized thereby, and not to new and distinct agreements. Three years had elapsed after the execution of the first agreement, before the last agreement was executed. To hold that, by the terms of the bond, the defendant is liable in this case, would be to hold that he would have been so liable had the plaintiff, at any time, entered into another agreement employing Warriner in any capacity, at any place however remote from Mound City. The distance of Fort Scott from Mound [580] City is immaterial. This we cannot hold. By the terms of the bond no such liability is expressly imposed. By implication, the' defendant’s liability cannot be extended. In onr opinion, the trial court, upon the facts, properly found in favor of the defendant. Judgment affirmed. All concur.