though the contract stipulates that it shall continue until a written notice of revocation is received.91

Sec. 75.

Sec. 76.

Alteration of Principal Contract by the addition of new parties. Alteration of Principal Contract by a change in the duties of the principal.

Sec. 77. Variation in amount of advancements under limited guaranty - Effect upon guarantor.

Sec. 78.

Sec.

Change of parties.

79. Alterations beneficial to the surety or guarantor. Sec. 80. Alterations enlarging the principal liability. Sec. 81. Discharge of promisor by extension of time.

Sec. 82. Agreement for extension must be for a consideration.

Sec. 88.

Sec. 89.

Sec. 90.

Sec. 91.

Sec. 92.

Payment of advance interest as a consideration for extension.
Agreement for extension must be for a definite time.
Extension of time by the execution and delivery of a note for
the debt, payable at a later date.

Collateral securities maturing at a later date.
Extension of time by act of Legislature.

Giving time to Surety Effect upon Co-Surety.

Giving time is not a defense, if the Surety is fully indemnified. Extension of time as a defense to persons who are in the situation of a Surety.

Extension by appeal or continuance in judicial proceedings. Extension of time with reservation of rights against the Surety. Sec. 93. Agreements not to sue as distinguished from agreements to extend- Effect upon Surety.

Bec. 94. Waiver of the defense of extension of time..

Sec. 95.

Delay of the Creditor in pursuing remedies against the Principal as a defense to the surety or guarantor.

Sec. 96. Payment or other satisfaction as a discharge of the Surety or

Guarantor.

Sec. 97. Liability against Surety or Guarantor revived if payment or substituted surety is void.

Sec. 98. Voluntary release of security held by the creditor or upon which the creditor has a lien.

Sec. 99.

Sec. 100.

Release of securities by the misconduct of the creditor.
Release of securities by operation of Law.

Sec. 101.

Release by the Creditor of Property of Principal in his pos session or control, but not held as security for the Suretyship

debt.

Sec. 102. Whatever releases principal will release the surety or guarantor.
Sec. 103. Same Subject- Release of principal by operation of law.
Sec. 104. Same Subject—In cases where the release by operation of
law is not the result of the fault or procurement of the
Creditor.

Sec. 105.
Sec. 106.

Suretyship obligations obtained by fraud of the creditor.
Same Subject-Concealment or non-disclosure of facts by the
Creditor.

Sec. 107. Discharge of promisor by failure to disclose facts coming to the knowledge of the creditor, after the execution of the contract.

Sec. 108.

Fraud and Misconduct of the Principal.

Sec. 109. Misconduct of the Principal, by delivering Suretyship obligations without complying with conditions.

Sec. 110. Suretyship contracts made in reliance upon promises of the

creditor.

Sec. 111. Conditional contracts of Suretyship -Parol evidence not competent to show conditions.

Sec. 112.

Sec. 113.

Same Subject - Parol evidence competent in certain cases.
Release of promisor by the creditor.

Sec. 114.

Release of a Co-promisor by the creditor.

Sec. 115.

Sec. 116.

Defense of the promisor based upon the failure of the creditor to sue the principal when requested.

Same subject - The doctrine of Pain vs. Packard.

Sec. 117. The principal's right of set-off or counterclaim against the cred

itor as a defense to the promisor.

Sec. 118. Defenses based upon the right of the promisor to control the application of collateral.

Sec. 119. Revocation - - Death of the promisor.

§72. Material alteration of principal contract.

A material alteration of a contract is such a change in the terms of the agreement as either imposes some new obligation on the party promising or takes away some obligation already imposed. A change in the form of the contract which does not effect one or the other of these results is immaterial.

Any change in the terms of the principal contract which obliges the debtor to do something which he was not before bound to do will discharge the surety or guarantor. This is said to result from either one of two reasons:

1 Boalt vs. Brown, 13 0. S. 364; Patterson vs. McNeely, 16 O. S. 348; Waterman vs. Vose, 43 Me. 504; McGrath vs. Clark, 56 N. Y. 34;

1

Dewey vs. Reed, 40 Barb. 16; Hart vs. Clouser, 30 Ind. 210; Hesseli vs. Johnson, 63 Mich. 623; 30 N. W. 209.

(1) It is an increase of the promisor's risk or hazard, The addition of new burdens upon the principal may be the cause of his failure to perform any part of his contract. The new conditions or terms might, indirectly at least, render impossible the carrying out of the things which were the subject of the guaranty.

(2) The contract as changed is not the same contract guaranteed by the promisor. The original contract has been put an end to and a new one substituted. The guarantor has never agreed to stand good for the latter, and suretyship cannot be 'imposed without the express consent of the promisor, and his execution of the original contract will not carry by implication any liability upon a substituted contract, although the latter is similar to the first.

Either one of these reasons is a satisfactory ground upon which to rest the discharge of the promisor, and both are abundantly supported by authority. The suggestion, however, that a new contract has been substituted entirely supersedes the first reason given. It is of no importance to consider whether the risk of the promisor has been increased or not, if the promisor is to be discharged for the reason that his contract has been ended.

$73. Same subject continued.

If the alteration consists in relieving the principal of some obligation included in the original contract, or if new obligations have been added and liabilities equal in amount cancelled, so that the new contract imposes no greater burdens or risk than the original, or if the added obligations can be shown to be merely nominal, and which do not in any way increase the risk of the promisor, then the question of the discharge of the promisor must rest wholly upon the proposition of a substituted contract, and many courts have been willing to stand solely upon this ground.

In an early English case H contracted for the milking of thirty cows for a year and J was surety. The parties to the principal contract changed the terms so that I was to have

twenty-eight cows for one part of the year and thirty-two for the other. This was apparently not a substantial change as the average of thirty remained, but the Court discharged the surety, holding: "The new agreement was binding only on those persons who were parties to it. If it had been intended to bind J by it, he should have been consulted; he had a right to insist upon a literal performance of the original bargain. If a new bargain was made, he had a right to exercise his judgment whether he would become a party to it. There may, perhaps, be very little difference between the two contracts, but the question does not turn on the amount of the difference; but the question is, whether the contract performed by the plaintiff is the original contract to which the defendant was a party. If it is, then J is bound by it, otherwise he is not.” 2

2 Whitcher vs. James Hall, 5 Barn. & Cr. 269 (1826).

"No principle of law is better settled at this day, than that the undertaking of the surety, being stricti juris he cannot, either at law or in equity, be bound farther or otherwise, than he is by the very terms of his contract. bound by the old contract, for that has been abrogated by the new; neither is he bound by the new contract, because he is no party to it.

He is not

Neither is it of any consequence that the alteration in the contract is trivial, nor even that it is for the advantage of the surety. Non haec in foedera veni, is an answer in the mouth of the surety, from which the obligee can never extricate his case, however innocently or by whatever kind intention to all parties, he may have been actuated." Bethune vs. Dozier, 10 Ga. 235.

See also Warden vs. Ryan, 37 Mo. App. 466; Atlanta National Bank vs. Douglass, 51 Ga. 205; Weir Plow Co. vs. Walmsly, 110 Ind. 242; 11 N. E. 232; Dey vs. Martin, 78 Va.

1; Christian & Gunn vs. Keen, 80 Va. 369; Rowan vs. Sharps' Rifle Mfg. Co., 33 Conn. 1; Eyre vs. Hollier, Lloyd & Gould, 250; St. Louis Brewing Assn. vs. Hayes, 71 Fed. Rep. 110; Parke vs. White River Co., 110 Cal. 658; 43 Pac. 202; Chester vs. Leonard, 68 Conn. 495; 37 Atl. 397; Plunkett vs. Sewing Machine Co., 84 Md. 529; 36 Atl. 115; Prior vs. Kiso, 81 Mo. 241; Evans vs. Graden, 125 Mo. 72; 28 S. W. 439; Gardner vs. Watson, 76 Tex. 25; 13 S. W. 39; Nichols vs. Palmer, 48 Wis. 110; 4 N. W. 137; Titus vs. Durkee, 12 Up. Can. (C. P.) 367.

It was held in Sanderson vs. Aston, L. R., 8 Ex. 73, that it is not sufficient to discharge the surety that the alteration be "material" merely in the sense that it imposes a new contract, but that the change must be prejudicial to the surety, and that an alteration in the principal contract, changing the period within which notice to quit employment could be given, from one month to three months, was not material since the risk of the surety was not thereby affected.