Cornell v. Eagan — 1 N.Y. St. Rep. 265

Majority

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Cornell v. Eagan.

(New York Common Pleas,

General Term,

Filed June 7, 1886.)

Headnote

Surety—When relieved from liability.

Any alteration or departure by the parties from the terms of the contract, for the performance of which one becomes surety, if made without his consent, discharges the surety, whether the alteration was injurious or beneficial to the surety.

Appeal from a judgment entered upon the report of a referee. The defendant having died after the referee’s report was filed, the action was revived in the name of his personal representative.

On the 26th of June, 1879, the plaintiff and Peter K. Kennedy entered .into a contract, whereby the plaintiff hired and let to Kennedy the steamboat “Minnie Cornell,” her tackle, etc., from the 4th day of July, 1879, to the 4th day of October, 1879, to run in and around the harbor and port of New York, for the sum of $9,000.

On the same day the defendant Coleman executed an instrument in writing as follows: “I, James A. Coleman, of New York, for, and in consideration of one dollar in hand to me paid this 26th day of June, 1879, do hereby agree to bind myself, and do bind myself, my heirs and assigns, to make good any loss or damage caused to Joseph

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Cornell, of Hew York, owner of steamboat ‘Minnie Cornell,’ by non fulfillment of contract on part of Peter K. Kennedy on charter of steamboat ‘Minnie Cornell’ from, said Joseph Cornell, for ninety days from July 4th, 1879;. and do hereby agree to make good any deficiencies on said charter, either in not keeping boat the time she is chartered, for, or in bills not paid on said boat contract during said term by said Kennedy or his agent or agents.

“In witness whereof,” etc.

In October, 1879, plaintiff brought this suit against Coleman, as surety for Kennedy, claiming to recover $1,940.54 for deficiencies in bills contracted by said Kennedy or his agents.

The defendant, in his answer, claimed to be discharged from suretyship because of the alteration and departure by Kennedy and the plaintiff from the original contract of hiring, and because they made new and different arrangements in regard to the possession and running of the-“Minnie Cornell.”

On the trial it was proved that in the latter part of August, 1879, the plaintiff and Kennedy made a new agreement, by wMch Kennedy assigned to plaintiff all the proceeds or receipts of the charter party contract, by which he, Kennedy, was entitled to control the “Minnie Cornell” until the 4th day of October, 1879; and that they agreed that George M. Lewis, an employee of the plaintiff, might take-possession of the “Minnie Cornell,” and take all moneys that might be received on the said boat, or become due to her, for services she might render between that day and the 4th day of October, 1879. That, under this agreement, the plaintiff, by Lewis, had control of and ran the boat, took the receipts, hired and paid the captain and crew, and, in his discretion, expended and paid out moneys to supply the bar, and for other purposes. That instead of running the-boat in and about the harbor of Hew York, they ran her to-Coney Island, and, on one occasion, up the Hudson river, and about the 20th of September the boat was abandoned by Lewis. What was done with her by the plaintiff after that date does not appear.

Of this change in the possession, control and management of the boat, the surety Coleman had no knowledge- and he never consented thereto.

The defendant, in due time, requested the referee to find as a conclusion of law, that the instrument executed by the defendant was varied and altered, and the identity thereof destroyed, by the assignment made by Kennedy to-Lewis, on the procurement of the plaintiff, and without the knowledgment or assent ofx the defendant, which he refused. We think this was error. Any alteration or de

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parture by the parties, from the terms of the contract for the performance of which one becomes a surety, discharges the surety, whether the alteration was injurious or beneficial to the surety.

The liability of a surety is always strictissimi juris, and may not be executed by construction beyond his specific engagement. Nat. Mech. Bkg. A. v. Concklyn, 90 N. Y., 116 . The courts will not stop to enquire whether the alteration is, or may be prejudicial or beneficial to the surety. He is a sponsor for one contract, and no one has a right to make another for him. Fellowes v. Prentice, 3 Denio, 521 ; see, also, Ludlow v. Simond, 2 Cai. C., 1; Ward v. Stahl, 81 N. Y., 406 ; Barnes y. Barrow, 61 id., 39. In this case the agreement was that Kennedy shah have the “Minnie Cornell,” from July 4th to October 4th, 1879, and run her in and around the harbor and port of Hew York; and if at the end of ninety days there were any deficiencies “in bills on said boat, contracted on said boat, during said time, by Kennedy, or his agent or agents,” the surety was to make it good.

By the arrangement between plaintiff and Kennedy, without Coleman’s knowledge or consent, the vessel and ah control of her was given to another person; neither Kennedy nor his agent or agents contracted the bills; the running of the boat was not limited to the harbor and port of Hew York; the boat was not used by anyone, from the 20th day of September to the 4th of October; the receipts and expenditures were made by the plaintiff or his agent or a third, person, with plaintiff’s consent. All this was done without Coleman’s knowledge or consent.

The new agreement in regard to the “Minnie Cornell,” and the acts done under it, clearly absolve Coleman from his contract of suretyship.

Having arrived at this conclusion, it is unnecessary to examine the other questions presented on this appeal.

The judgment must be reversed and a new trial ordered, with costs to abide the event. ..