Fred Heim Brewing Co. v. Hazen

Gill, J. One, Glustave Naurath, was engaged in selling beer at Stanberry, Missouri, and he bought his supplies from the plaintiff brewing company. To secure payment of the bills for beer the brewing company required Naurath to furnish it a bond with satisfactory security, and this he did and delivered it the instrument here sued on, purporting to be a bond in the penal sum of $500, under the hand and seals of said Naurath as principal, and defendants Hazen, Bis-son, Oonnly, Stevens, Burnley and Glennug as sureties. Naurath subsequently defaulted in the matter of the purchases of beer, left the country, and plaintiff thereupon brought this action on the alleged bond to recover the amount of such deficiency. The sureties defend on [281] the ground that after they and saidNaurath had signed the writing, it was materially altered without their knowledge or consent, by attaching to the names of ■each and all of the obligors the word “seal,’-’ with a scroll around the same. The issue thus made was tried before the court without a jury, and from a judgment in defendant’s favor plaintiff appealed. Disregarding points made by the appellant’s counsel as to the court’s declaration of law, and admitting some errors and inconsistencies therein, yet, under the undisputed facts of this case, we must hold the judgment to be clearly for the right party, and, therefore, affirm the same. That this instrument, when signed by the principal and his sureties, was not under seal, but was in form only a simple contract, cannot be questioned — the evidence in that regard is all one way. And that the seals were added to each name, and the character of the instrument thereby changed, all without any knowledge or consent of these defending sureties, is also uncontrovertably shown by the evidence. Whether such alteration in the nature of the instrument was made by Naurath, while the same was in his possession, or was made by the plaintiff- after delivery to it, can make no difference. In either event such alteration was unauthorized and such as to discharge the sureties. This is the law of this state, as shown by the numerous cases cited in brief of defendants’ counsel.. The courts will not tolerate any unauthorized change in the surety’s undertaking. As well said by Justice Story: “To the extent, and in the manner, and under the circumstances pointed out in the obligation he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and an alteration [282] of it is made, it is fatal.” Miller v. Stuart, 9 Wheat. 702; 24 How. (U. S.) 317. We have here a case where the sureties signed, not a bond but a simple contract in writing as distinguished from a specialty, and this was subsequently, without their assent, express or implied, changed to a bond by adding seals to their respective signatures. This, too, was a material alteration. The instrument they signed was not of that dignity as the one sued on; the bond, being under seal, imparted a consideration, while the instrument to which they affixed their signatures did not. As said by Story, the sureties can only be held “in the manner and by the very terms pointed out in the obligation.” See following decisions in point: Trigg v. Taylor, 27 Mo. 245; Haskell v. Champion, 30 Mo. 136; Ivory v. Micheal, 33 Mo. 398; Capital Bank v. Armstrong, 62 Mo. 59; State v. McGonigal, 101 Mo. 353, 363. The case in hand does not belong to the class of which State to use, etc. v. Potter, 63 Mo. 212, is a sample, and on which plaintiff’s counsel seems to rely. In that case Potter, the surety, was not allowed to defeat the action on the alleged ground that the principal had agreed when he, Potter, signed, to get one Bothrick, also as cosurety, unless it was also shown that the obligee had notice of such an agreement. It was there held that Potter was estopped from making such a defense. Judge Sherwood, delivering the opinion of the court, says: “Here the surety * * * had invested the principal with an apparent authority to deliver the bond; and there was nothing on the.face of the bond, or in any of the attending circumstances, to apprise the official who accepted it that there was any secret agreement which should preclude the acceptance of the bond; and the surety is alone in fault in the matter” for his unwarranted trust in Turley, the principal, etc.' [283] Neither is this one of those cases where the sureties signed and delivered to the principal an instrument with blanks to be filled, and where it has been held that the parties thus executing the paper thereby authorized the party in whose hands they placed it to fill in such blanks. The instrument which these defendants gave into the hands of Naurath was complete on its face, and there were no spaces left to be filled. They saw proper not to affix their respective seals, but to execute only a simple contract; and there was no authority, expressed or implied, in Naurath to make it a different contract. Capital Bank v. Armstrong, supra, p. 67; Ivory v. Micheal, supra, p. 400; Agawan Bank v. Sears, 4 Gray, 95. Holding these views on the main questions raised in the record, it becomes unnecessary to discuss others now unimportant. Judgment affirmed. All concur.