Picard v. Shantz

70 Miss. 381

• Court: Mississippi Supreme Court
• Decided: October 15, 1892
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The stipulation of the contract that payments should be-made by Mrs. Shantz to Collins, the contractor, by install.ments as the work progressed, and that the last payment of two hundred and fifty dollars should be payable only on completion of the house, operated as security to her for the-execution of his contract by Collins. Upon familiar and settled principles, Picard, surety for Collins, was entitled to the benefit thereof, and, to the extent that he was deprived of' this security by the acts of Mrs. Shantz in anticipating payment to the contractor, he is discharged as surety. Law v. East India Co., 4 Ves., Jr., 824; Hays v. Ward, 4 Johns. Ch., 122; Stevens v. Cooper, 1 Johns. Ch., 425; Navigation Co. v. Rolt, 6 C. B., N. S., 550; Calvert v. Dock Co., 2 Keen, 638; Ward v. Voss, 7 Leigh, 135; Neff’s Appeal, 9 W. & S., 36; Clopton v. Spratt, 52 Miss., 251; Pain v. Packard, 2 Am. Lead. Cas., 362.

It is impossible to discover, from the evidence in this cause, the extent of the recovery to which the plaintiff is entitled. The evidence is that,.after Collins, the contractor, had abandoned the work, Mrs. Shantz proceeded to have the house finished, and in so doing, and also in building a front fence, she expended two hundred and fifty or three hundred dollar’s. But Collins had not contracted to make the fence, and, as to-that, there was no obligation upon Picard, the surety. It does not appear how much was expended in completing the-house, which was the only work Picard become surety that Collins should do.

The judgment is reversed, and cause remanded,