Messrs. George Hines Gorman and Assistant Attorney General Pradt for plaintiff in error.
Mr. James Russell Soley for defendant in error.
Mr. Justice Shiras delivered the opinion of the court:
In September, 1898, the United States of America brought an action in the circuit court of the United States for the eastern district on New York against John Gillies, Henry Hamilton, and Hugh McRoberts, Catharine Freel, Edward J. Freel, and Frank J. Freel, as executors of Edward Freel, deceased.
The complaint alleged that theretofore, and on the 17th November, 1892, the defendant John Gillies entered into a contract in writing with the plaintiff to construct a timber dry dock, to be located at the United States Navy Yard, Brooklyn, New York, according to certain plans and specifications attached to and made part of said contract; that on said 17th November, 1892, the said John Gillies, as principal, and Henry [186 U.S. 309, 310] Hamilton and Hugh McRoberts, and Edward Freel, as sureties, executed their joint and several bond to the United States in the penal sum of $120,600, conditioned for the faithful performance by the said Gillies of his contract to construct said dry dock; that Gillies entered upon the performance of said contract; that subsequently, on June 16, 1893, Gillies and the United States agreed in writing to change and modify the plans and specifications so as to increase the length of said dry dock from 600 to 670 feet; that on August 17, 1893, Gillies and the United States further agreed in writing to change and modify the contract in certain particulars; that Gillies proceeded with the work under said original and supplemental contracts so slowly, negligently, and unsatisfactorily that the Secretary of the Navy, under the option and right reserved to him by the said contract, declared the said contract forfeited on the part of said Gillies; that thereupon, by a board duly appointed, the market value of the work done and of the materials on hand was appraised at the sum of $170,175.40; that thereafter, under the provisions of said contract, the Secretary of the Navy proceeded to complete said dry dock and appurtenances in accordance with the said contracts, plans, and specifications, at a cost to the United States of the sum of $370,000; that the sum of $72,414.16 represented the damages sustained by the plaintiff by reason of said Gillies' breach of contract; that Edward Freel died on the 24th day of December, 1896, leaving a last will appointing Catharine Freel, Edward J. Freel, and Frank J. Freel executors thereof; that the said defendant John Gillies neglected and refused to perform the terms and conditions of said contract on his part, and that the plaintiff has performed, fully and completely, all the terms and conditions of said contract on its part. Wherefore the plaintiff demanded judgment against the said defendants in the said sum of $72,414.16, with interest from April 1, 1897
On November 26, 1898, Edward J. Freel, as executor of Edward Freel, deceased, appeared and demurred to the complaint upon the ground that it appeared upon the face thereof that said complaint did not state facts sufficient to constitute a [186 U.S. 309, 311] cause of action. On May 24, 1899, after hearing the counsel of the respective parties, the circuit court sustained the demurrer, and dismissed the complaint as to said Edward J. Freel as executor. 92 Fed. 299. The case was taken to the circuit court of appeals for the second circuit, and on January 5, 1900, that court affirmed the judgment of the circuit court. 39 C. C. A. 491, 99 Fed. 237. On December 22, 1900, a writ of error was allowed, and the cause was brought to this court.
The question in this case is whether a surety on a contractor's bond, conditioned for performance of a contract to construct a dry dock, was released by subsequent changes in the work made by the principals without his consent.
As the question is presented to us on a general demurrer to the complaint, it is necessary to set forth, with some particularity, portions of the original and of the supplemental contracts, which form parts of the complaint.
The original contract, dated November 17, 1892, contained, after alleging that proposals had been made and accepted for the construction by contract of a timber dry dock, to be located at the United States Navy Yard, Brooklyn, New York, the following provisions:
... * *
The supplemental contract of June 16, 1893, contained, among other things, the following:
The supplemental contract of August 17, 1893, contained the following:
Before addressing ourselves directly to the question before us, it may be well to briefly examine some of the decisions of this court on the subject of the alteration of contracts without the assent of the surety.
Miller v. Stewart, 9 Wheat. 680, 6 L. ed. 189, was an action on a bond conditioned for the faithful performance of the duties of the office [186 U.S. 309, 316] of deputy collector of direct taxes for eight certain townships in the fifth collection district of New Jersey, and it appeared that the instrument of the appointment, referred to in the bond, was afterwards altered, so as to extend to another township, without the consent of the sureties. It was held that the surety was discharged from his responsibility for moneys subsequently collected by his principal, the court saying, per Mr. Justice Story: That the liability of a surety is not to be extended by implication, beyond the terms of his contract; that his undertaking is to receive a strict interpretation, and not to extend beyond the fair scope of its terms; and that the whole series of authorities proceeded upon this ground. Miller v. Stewart was followed and approved in Leggett v. Humphrey, 21 How. 76, 16 L. ed. 54; Smith v. United States, 2 Wall. 219, 17 L. ed. 788.
In United States v. Boecker, 21 Wall. 652, 22 L. ed. 472, in the case of a distiller's bond, which recited that the person is about to be the distiller at one place, to wit, at the corner of Hudson street and East avenue, situated in the town of Canton, it was held that his sureties were not liable for taxes in respect of business carried on by him at another place, to wit, at the corner of Hudson and Third streets in the same town, even though he had no distillery whatever at the first-named place.
However, the proposition that the obligation of a surety does not extend beyond the terms of his undertaking, and that when this undertaking is to assure the performance of an existing contract, if any change is made in the requirements of such contract in matters of substance without his consent, his liability is extinguished, is so elementary that we need not cite the numerous cases in England and in the state and Federal courts establishing it. Many of these cases will be found cited in the opinion of Thomas, J., in this case. 92 Fed. 299.
At the trial in the circuit court, it was contended, on behalf of the surety, that this proposition was applicable, and exonerated him by reason of the changes made in the original contract by the supplemental contracts of June 16 and August 17, 1893. It was claimed on behalf of the United States that the changes made in the original contract by the supplemental agreements were within contemplation of that contract, and [186 U.S. 309, 317] must be deemed to have been assented to in advance by the surety.
It was held by the learned trial judge that the government's position was well taken in respect to the supplemental agreement of June 16, 1893, which he regarded as fairly within the meaning of the provisions in the 7th section of the contract, which refers to and provides for changes, alterations, or modifications in the plans and specifications, and, therefore, within the undertaking of the surety. But his view was otherwise in respect to the alterations made by the supplemental contract of August 17, which, as respects the change of the site of the dock and the extension of the time of completion of the contract, he held to be changes not within the scope of the 7th section, but to be such as to exonerate the surety from liability for the subsequent dereliction of his principal.
We agree with the circuit court of appeals in thinking that if the learned judge's opinion was sound in respect to the agreement of August 17, 1893, it is not necessary to determine whether the 7th section warranted so wide a departure from the plans and specifications of the original contract as was made by the agreement of June 16, 1893.
Coming, then, to the question of the effect on the responsibility of the surety of the supplemental agreement of August 17, we agree with the circuit court and the circuit court of appeals in holding that the alternations thereby caused were beyond the terms of the undertaking of the surety, and extinguished his liability. The 7th section had in view such changes as might be found advantageous or necessary in the plans and specifications. But the changes called for by the new agreement had no reference to the original plans and specifications, but changed the location of the dry dock, requiring the contractor to make additional excavations and connections with the water, at an increased expense, and gave an increased time of performance.
A few cases, illustrating the principles involved, may be properly cited, and reference is made to the opinion of the circuit court, in which many more are cited.
In Mundy v. Stevens, 9 C. C. A. 366, 17 U. S. App. 442, 463, 61 Fed. 77, it was held by the [186 U.S. 309, 318] circuit court of appeals of the third circuit that sureties for the payment by a contractor to a subcontractor of all moneys received for work under a government contract as provided in the contract were released by an alteration of such agreement whereby the right secured to the original contractors to deduct from the monthly payments 3 cents per yard for material dredged, subsequently was modified so that payments of 2 1/2 cents per cubic yard should be made monthly; and it was also held that, as the plaintiff had set forth the supplementary agreement in his statement of claim, he thereby made it part of his case, and the burden of proof that the change was consented to by the sureties was upon the plaintiff.
Rowan v. Sharps' Rifle Mfg. Co. 33 Conn. 1, is an important case. There it was held by the supreme court of Connecticut that where a contract provided that the guns contracted for should be made 'with all possible despatch,' and a supplemental contract, made before performance, provided that 300 guns per week should be delivered for a certain period, and 600 per week afterwards, the surety was discharged, the court saying: 'But it appears to us very clear that a contract to manufacture and deliver a large quantity of any description of goods in a reasonable time, and a contract to manufacture and deliver the same quantity either at a specified time for the whole or a specific quantity from time to time, monthly or weekly, as the case may be, are materially variant.'
The supreme court of Indiana, in Zimmerman v. Judah, 13 Ind. 286, held that a supplementary agreement to put an additional story on a house released the surety for the contractor in the original contract.
Whitcher v. Hall, 5 Barn. & C. 269, is cited in the opinion of the circuit court. There it was held by the court of King's bench that a surety engaged for another to the plaintiff for the milking of 30 cows, at a given price each per annum, was released by a subsequent agreement without his consent, whereby the hirer was to have 28 cows for one half the year and 32 for the remainder. [186 U.S. 309, 319] A further contention is made in the government's brief that, even if such substantial changes were made in the contract as would release the surety if made without his assent, the fact of such changes should have been set up by the defendant as an affirmative defense by answer or plea, and not by demurrer.
The declaration set out, by attaching them as exhibits, the original and the two supplemental contracts, and it alleged that the changes effected by the latter were made 'pursuant to, and in conformity with, paragraph 'seventh' of the first contract.' If, upon the face of the agreement of August 17, 1893, it appeared that substantial changes were made in the location of the proposed structure, requiring additional excavations and connections at an increased expense, and extending the time limited by the contract for the completion of the dry dock for a period of eight weeks, on account of the change in the position of the dry dock, and if, as is conceded by this objection, such substantial changes in the location, cost, and time necessary for the completion of the work operated to release the surety if made without his knowledge and consent, then the declaration put the plaintiff out of court, so far as the defendant surety was concerned, unless it was averred that the latter had knowledge of the changes and consented thereto. If the government's pleader had evidence of facts showing such knowledge and consent, and was surprised by the action of the trial judge in sustaining the demurrer, it was open to him to ask leave to amend the declaration by adding the necessary averment. This was not done, and we think it is too late to urge this objection in this court.
The judgment of the Circuit Court of Appeals is affirmed.
Mr. Justice Gray took no part in the disposition of this case.