Todd v. School District No. 1

Marston, J. There is at least one fatal error in this ease. The school district entered into a contract with [296] Shumway and Breed under which they were to build a schoolhouse and complete the job by the 10th day of October, 1874. The site was not designated nor referred to in the contract, nor was any site fixed .upon by the district until about the time when the building should have been completed, and the site so chosen was not then cleared nor for some time afterwards. The duty of the district was clear under this agreement to furnish a suitable site, and this within a reasonable time from the date of the agreement, so that the-contractors might not be delayed in the performance of the agreement on their part. In August, 1874, Shumway and Breed assigned the contract to one Goodale, and it appears that the school district recognized the validity of the assignment, and treated with Goodale thereafter, and agreed with him to extend the time for the completion of the contract. This assignment and extension of time released the sureties Todd and Hinds from all liability upon their bond given for the faithful performance of the contract by the original contractors. Their agreement was a personal one that Shumway and Breed would perform the contract, and not that some other person, to whom they might assign their contract, with the consent of the district, would perform, or that they would be responsible for the default of such third person. If this district had not been in default in not procuring and clearing a site, and had they not recognized the validity of the assignment to Goodale, or had the sureties consented to such assignment, it might be otherwise. , The judgment must be reversed with costs. The other Justices concurred.