Shuey v. Bunney

California Court of Appeal Feb 5, 1935 No. Civ. 1526Published

Before: Barnard

AI Brief

AI-generated · verify before citing

Holding. The court held that a surety is released from liability on a bond when the underlying contract is materially altered without the surety's consent, specifically through the addition of new obligations and changes to purchase terms.

Issues

Whether the trial court erred in denying a motion to strike a cross-complaint when the record on appeal lacked sufficient documentation.
Whether a supplemental agreement that increased the number of cattle and changed purchase prices constituted a material alteration sufficient to release a surety from a performance bond.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it was a change in the contract and we think such a change as comes within the provisions of the code sections by which a surety is released”

“This change was both important and material”

“The motion for judgment on the pleadings was properly granted since it sufficiently appears therefrom that the appellant could not recover on the complaint filed.”

BARNARD, P. J.

On July 1, 1925, the plaintiff as first party entered into a contract with the defendants Bunney

[409]

as second parties whereby the latter were to care for and handle certain cattle to be turned over to them by the first party. It was agreed that the second parties were to take charge of 426 head of cattle then owned by the first party, of 275 more if the first party should purchase and deliver the same, and of any additional number which might be turned over to them by the first party, together with any increase from all of said cattle. The first party was to loan to the second parties a sufficient sum of money to fence their “claim”, to purchase two windmills, and to pay the cost of extending a certain tunnel for water purposes. It was further agreed that the second parties were to care for the cattle on their range, situated partly in California and partly in Nevada, and that they might sell certain of the stock as time went on, provided the number in the herd should at no time be reduced below 424; that all stock so disposed of should be sold in the name of the first party and all cheeks made payable to him; that the first party might retain from such proceeds a sufficient sum to cover all money advanced by him with interest, all taxes paid by him, and interest at six per cent on the value of all cattle furnished by him at an agreed price per head; and that the second parties should pay the first party $30 per head for any cattle not returned to him at the end of five years.

On May 7, 1928, these parties entered into a supplemental agreement which recited that whereas the first party had furnished labor, material and money for the improvement and equipment of the ranch and range controlled by the second parties and for the purchase of cattle which had been added to the number theretofore delivered to the second parties under the terms of this agreement, and in consideration of the foregoing and for the purpose of repaying the first party at the expiration of the agreement, the second parties agreed to add 100 head of cattle to the number covered by the agreement, making a total number of 825 head then owned by the first party and held by the second parties under the agreement. It was then provided that in the event the second parties exercised their option to purchase the cattle the price should be changed to $33 a head.

Shuey v. Bunney

AI Brief

BARNARD, P. J.

More from California Court of Appeal

Related research

AI Brief