Kingman St. Louis Implement Co. v. McMaster

94 S.W. 819, 118 Mo. App. 209, 1906 Mo. App. LEXIS 297

• Court: Missouri Court of Appeals
• Decided: April 24, 1906
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts). — Plaintiff’s right to recover, if any it has, depends upon the construction that should he given to the contracts. In the memorandum agreement, Alsup and Grantham are called “guarantors;” in the guarantee or supplemental contract, from which we think the measure of their liability must be determined, they are called “sureties and guarantors,” and in consideration of the premises (set out) they say: “We, the undersigned, do hereby become surety and guarantor for the said G. J. McMaster, and do moreover agree and obligate ourselves and become liable to the company for the payment of any and all indebtedness for or on account of goods or property sold or disposed of by O. J. McMaster, and that we will be and become in the first instance, and we do hereby become so liable, and agree to pay the company any indebtedness which may be, or become .due to them in the premises, or upon any transaction growing out of or pertaining to the business relations between the parties aforesaid, pursuant to the contract between said parties, and that we Avill save and keep harmless the company because of any such indebtedness, Avhether upon note, bill or open account in the premises, and Ave do hereby expressly waive notice of the acceptance hereof by the company and likewise any notice of such sales, shipments or delivery of property by the company or the accruing of any such indebtedness.” It seems to us that this undertaking is broad enough to bind Alsup and Grantham, as sureties, to pay any indebtedness of McMaster to the plaintiff, which accrued on account of the sale of plaintiff’s goods by McMaster, furnished under the terms of the contract, irrespecitve of the form to which they (plaintiff and McMaster) may have reduced such indebtedness; and that nothing short of actual payment or a change in the terms of the contract would discharge the sureties. There is no evidence that the farmers’ notes were taken in payment of McMaster’s indebtedness, but his evidence and that of the plaintiff is to the effect that these notes were taken as additional security. For the reason they were so taken, defendants contend that the contract was thereby changed and the sureties released. It is well-settled law that a surety has a right to stand upon the letter and very terms of his contract, and any alteration in the terms thereof, though made for his benefit, will release him. [Burnes Est. v. Fidelity & Deposit Co., 96 Mo. App. l. c. 470, 70 S. W. 518, and cases cited; Beers v. Wolf, 116 Mo. 179, 22 S. W. 620.] But the taking of subsequent collateral security for the payment of the debt, when no extension of the time of payment is granted in consideration of such collateral security, does not alter or vary the letter or terms of the surety’s contract, is for his benefit and does not operate to discharge him. [Headlee, Admr., v. Jones, 43 Mo. 235; Lafayette County v. Hixon, 69 Mo. 581; Noll v. Oberhellman, 20 Mo. App. 336; Newcomb v. Blaekly, 1 Mo. App. 289.] The indorsement and delivery of the farmers’ notes by McMaster to plaintiff was but the giving of subsequent collateral security for the payment of his debts to the plaintiff, was for the benefit of the sureties and, therefore, did not have the effect to release them.

We think the suit was properly brought, that the petition states a good cause of action, and the principal of the farmers’ notes filed as exhibits, if uncollectible, are prima facie evidence of the sum that plaintiff ought to recover, plus six per cent interest thereon, from the date of the demand of payment.

The judgment is reversed and the cause remanded.

Nortoni, J., concurs; Goode, J., not sitting.