Howe v. Peabody

68 Mass. 556

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1854
• Status: Published

Opinion

Metcalf, J.

The material alteration made in the bond, by the plaintiff, after the first two sureties had executed it, and without their consent or knowledge, rendered it void as to them. Com. Dig. Fait, F. 1.

As the last two sureties, who executed the bond after it was altered, had no notice of the alteration, but supposed that they were to be co-sureties with the first two, and therefore executed it under a false belief as to the extent of the liability to which it might ultimately subject them, it is void as to them also. They never intentionally undertook to be the only sureties of the administrator, and to bear the whole loss to which the sureties might be subjected. Sharp v. United States, 4 Watts, 21. King v. Smith, 2 Leigh, 157. Wood v. Washburn, 2 Pick. 24.

The facts show that Peabody, the principal obligor, consented to the alteration of the bond, after he executed it. He is therefore liable for a breach of its conditions. Smith v. Crooker, 5 Mass. 539. Speake v. United States, 9 Cranch, 37. Camden Bmk v. Hall, 2 Green’s (N. J.) Rep. 583. The extent of his ultimate liability is not affected by the bond’s being void as against the sureties.

According to the agreement of the parties, the principal obligor is to be defaulted, and the other defendants are to have judgment for their costs.