
    Kirby v. Studebaker.
    
      A. and B. purchased of 0., by contract in writing, all the strawberries that might ripen on his patch during the season; and agreed to pay him, therefor, a given price on delivery. -B. became surety for A. and B., by subscribing the following agreement: “ On the part of the said A. and B., I hold myself, with them, responsible for their part of the above contract.” O., in pursuance of the contract, delivered the berries; but A. and B. failed^oji their part, to pay for them, and became insolvent. Suit by -C. against A. B. and B. for the price of the berries delivered.
    
      Held, that the undertaking of the surety bound him to a direct performance of the contract, and was, in effect, that he or his principals would pay for the berries on delivery.
    
      Held, also, that 0. might have demanded the price when the berries were delivered, and withheld them unless it was paid; but that he was not bound to do so, but might deliver them, and compel the payment of the price afterward.
    
      Held, also, that it was not necessary to notify the surety of the failure of the principals to pay the price of the berries; but that if any notice was to be given, it was notice from the surety to 0. to sue the principals.
    
      
      Tuesday, November 27.
    
      Beld, also, that mere delay in proceedings to collect the debt, where time is not given by a binding agreement, does not discharge the surety.
    APPEAL from the St,. Joseph Circuit Court.
   Perkins, J.

Ilenry Studebaher, of St. Joseph, had a strawberry patch. H P. c& 0. Dillon, keepers of a saloon, before the strawberries were ripe, entered into a written agreement with Studebaher, by which they purchased all the berries that should ripen in the patch; agreeing to pay therefor, on delivery at their place of business, at the rate of $3.75 a bushel, during the season. Kirby, the appellant, added to the agreement this clause:

“ On the part of the said Dillons, I hold myself, with them, responsible for their part of the above contract.

John F. Kirby P

The berries were delivered to the Dillons, in parcels as they ripened, during the month of June, 1859. The Dillons did not pay for them on delivery, nor afterward; but nothing was said by either of the parties about any change in the contract.

Kirby had no notice of the failure of the Dillons to pay, till this suit was commenced, being in September, 1859, about three months after the delivery of the berries. In this interval of time the Dillons had become insolvent. • •

On these facts, Kirby claims that he is discharged from liability, on three grounds:

1. Alteration of the contract by Studebaher and the Dillons, without his consent.

2. "Want of notice of the default of the Dillons.

3. Want of diligence in Studebaher in proceeding against the Dillons. *

We must first ascertain the nature of Kirby’s undertaking. In the 2d Yol. of the 3d Ed. of American Leading Cases, on page 283, it is said that “ the contract of the surety may be in the nature of a guaranty, and merely stipulate for performance by the principal; or it may bind the surety to a direct performance on his part.”

Kirby's undertaking, in this case, we think to be of the latter character. We think it clearly bound him to a direct performance' with the Dillons. He says, I hold, or bind, “ myself with them ” for the performance, &c. He agreed, then, that the Ferries should be paid for on delivery; that he or the Dillons, would make such payment. And this was a continuing contract, applicable to each separate delivery of berries during the season.

Now, as between Studebaher and the Dillons, what was the right of the former under the contract ? On arriving at Dillons for the delivery of the first bushel, what might Studebaher do ? He might tender the berries and demand concurrent payment of the price, and if it was not furnished, he might refuse to deliver the berries ; but he was not bound thus to act. This withholding of the article sold till the payment of the price, is simply a privilege which the law gives for the security of the seller; but the contract itself does not require that he should exercise it. If he is satisfied of the responsibility of the buyer, he may deliver the article sold, according to the contract on his part, and then compel performance on the part of the buyer, afterward. Withholding delivery by the seller is a non-fulfillment of the contract on his part, but one that the law allows for his security, under certain circumstances. The delivery of the berries, then, by Studebaher to the Dillons, was a fulfillment, on his part, of the contract, not a breach or variation of it; and immediately upon such delivery, the Dillons became his debtors to the amount of the price of the berries delivered, by the failure to fulfill on their part. Studebaher was not bound to rescind the contract because the Dillons failed in its performance, unless he chose to do so, nor to take any other course than that indicated by its terms.

But, as we have already seen, whatever consequences resulted to the Dillons by their failure to pay, the like resulted to Kirby. He too, became Studebaher s debtor for the price of the berries delivered.

We now consider the questions of notice and lapse of time.

As Kirby stands as a surety in the original contract, it is beyond doubt, that if any notice was to be given, it was a notice on his part'to Studebaher, to sue the Dillons. See Rowe v. Buchtel, 13 Ind. 381. And it it is well settled that mere delay, where time is not given by a binding agreement, in proceeding to collect a debt, does not discharge a surety. Spenee, in the 1st vol. of his Equity Jurisdiction, p. 638, says: “ In a case, temp. Car. I., a surety was relieved from his obligation on a bond which had been continued for a long time without his privity, he thinking the same to be paid; and there are other cases of a similar nature in that and the preceding reign. Toth, 279; ibid. 280, temp. Jac. I., where a bond was not put in suit for twelve years. See C. P. Cooper, Append. 565. But it is now settled, that it is the business of the surety, (he being a guarantor for the payment,) to see that the principal debtor pays, not that of the creditor. Lord Eldon, Wright v. Simpson, 6. Ves. 734.—et. v. Anon, A. D., 1820. C. P. Cooper, Append. 621. It is the same at law. Trent Navigation v. Harley, 10 East. 34, 40.” See, also, Goring v. Edwards, 3 Ross’ Leading Cases, top p. 77; S. C., Eng. C. L. Rep. vol. 19. Goselee, Justice, says: “I think a surety has a duty upon him to go and inquire into the transaction. In Orme v. Young, 1 Holt, 85, there was delay in giving notice, and yet the surety was holden not to be discharged.”

B. L. Farnsworth, (1) for appellant.

J. H. Miller and M. G. George, for appellee.

(1) The following authorities were cited by Mr. Farnsworth, in support of the proposition, that sureties are bound only according to the strict letter, or precise terms, of their contract, and are released if it be modified in any respect by the principals. Ludlow v. Simonds, 2 Caines, 60.—2 Term. R. 372.—7 do. 256.—2 Brown’s Ch. Ca. 579.—2 Ves. Jr. 540.—6 Hill, 543.—8 Wendell, 516.—10 Johns. Rep. 180.—Parson’s Mer. L. 67 —Bonar v. MacDonald, 1 Eng. L. & E. R. 1.—Miller v. Stewart, 9 Wheat 680,-Mayhew v. Boyd, 5 Maryl. R. 102.

In the case at bar there was judgment below for the plaintiff, and it must be affirmed.

Per Curiam.

The judgment is affirmed, with 2 per cent, damages and costs.  