Equitable Surety Co. v. United States Ex Rel. McMillan

Citations

• 234 U.S. 448
• 34 S. Ct. 803
• 58 L. Ed. 1394
• 1914 U.S. LEXIS 1162

Syllabus

<p>The obligation given by the surety under the District of Columbia Materialmen’s Act of 1899 which is modeled after the General Materialmen’s Act of 1894, has a dual aspect, being given not only to secure the Government the faithful performance of all the obligations assumed towards it by the contractor, but also to protect third persons from whom the contractor may obtain materials and labor; these two agreements being as distinct as though contained in separate instruments, the surety cannot claim exemption from liability to persons supplying materials merely on account of changes made by the Government and the contractor without its knowledge and which do not alter the general character of the work. United States v. National Surety Co., 92 Fed. Rep. 549, approved.</p> <p>Under the rule of strictissimi juris, the agreement altering the contract must be participated in by the obligee or creditor as well as the principal in order to discharge the surety; in the case of a bond under the Materialmen’s Acts of 1894 or 1899, there is no single obligee or creditor to consent thereto and the rule of stridissimi juris does not apply where the alterations agreed upon do not change the general nature of the work.</p> <p>In this case the alterations of the terms of a contract for building a school house in the District of Columbia altering its location but without affecting its general character, without the knowledge or consent of the surety, did not have the effect of releasing the surety from the obligation of the bond given under the District of Columbia Materialmen’s Act of February 28, 1899.</p> <p>Quaere, and not involved in this case, what would be the result of a change not contemplated in the original contract as between the District of Columbia and so great as to amount to abandonment of the contract?</p>