Berman v. Shelby

125 S.W. 124, 93 Ark. 472, 1910 Ark. LEXIS 325

• Court: Supreme Court of Arkansas
• Decided: January 3, 1910
• Status: Published

Opinion

Wood, J.,

(after stating the facts). Appellant, in his prayer for instruction number 11, asked the court to submit to the jury the question as to whether or not appellees had waived the right to cancel the lease because of any failure that might have been on the part of appellant to put the water heater in the bath room. Appellant therefore cannot complain of the finding of the jury that there was no such waiver. The case then, as we view it, is as follows: In consideration of the covenants on

the part of appellees to pay rents, etc., appellant also covenanted on his part that he would do certain things mentioned in the lease, one of them being that he would “put a water heater in the bath room.” The uncontroverted evidence shows that appellant failed to comply with his contract in the above particular, and appellees have not waived compliance with this provision of the contract.

The only question, therefore, is, can appellant compel appellees to comply with their covenants to pay rent when he has failed to comply with his covenant to “put the water heater in the bath room?”

The principles of law decisive of this question have been announced by this court in some very recent cases. Harris v. Wheeler Lumber Co., 88 Ark. 491; Jno. A. Gauger & Co. v. Sawyer & Austin Co., 88 Ark. 422, and cases cited. In the latter of the above cases we cite Missouri Pacific Railway Co. v. Yarnell, 65 Ark. 320, where we said: “The obligations of

the contract were mutual; and if the .appellee failed to comply with it, he could not hold the appellant to a compliance. This is too plain to require argument or authorities. The failure of one party to a contract to comply with its terms releases the other party from compliance with it.” The above doctrine furnishes appellees D. H. and H. L,. Shelby a complete defense to appellant’s claim.

As appellee Boone was a mere guarantor or surety for the Shelbys, the defense that was complete as to his principals of course discharges him. Being a surety, he would have been discharged upon the uncontradicted evidence, even if the Shelbys had not been. Bor “a surety will be discharged by any material and unauthorized alteration of his contract, and it is immaterial that the principal assured .the obligee that the alteration would not affect the original contract, or that he failed to carry out the contract as altered.” O’Neal v. Kelly, 65 Ark. 550. See also White River, Lonoke & W. Ry. Co. v. Star Ranch & Land, Co., 77 Ark. 128; Lawhon v. Toors, 73 Ark. 473; Singer Mfg. Co. v. Boyette, 74 Ark. 600.

Even if the Shelbys had consented to a different arrangement about the water heater (but they did not) from that specified in the lease, Boone did not consent to any change in the lease. The change was a material one, and, as we have said, according to the above authorities, Boone would have been released from the obligations of his contract, even though the Shelbys were not discharged from their covenants.

We need not inquire concerning other questions. Bor, under the law, upon the undisputed evidence as to the above, the judgment is right, and it must be affirmed.