Strawbridge v. Baltimore & Ohio Rail Road

Bartol, J., delivered the opinion of this court. Just prior to the 9th of April 1853, Isaac S. Strawbridge, one of the appellants, was appointed “ticket and freight agent of the Baltimore and Ohio Rail Road Company, at Ellicotls Mills.” On the 9th of April 1853, he and the other appellants executed and delivered to the rail road company the bond upon which this action was instituted. The penalty of the bond is $3,000; and after a short recital of the fact that Strawbridge had been “appointed by the said company, as ticket and freight agent at Ellicotts Mills,” the condition is stated in these words: “that if the said Isaac S. Strawbridge do not at all times hereafter, so long as he shall hold said office, well and faithfully perform the duties of the said office, so that the said company shall suffer no loss, damage or injury on account of any act or acts, either of omission or commission of the said IsaacS. Strawbridge, and without wasting, embezzling, spending, or unlawfully making way with ³⁶⁶ the money, property, or effects of the said company, or such as may come into his hands, or under his control, while holding the office aforesaid, then, if the said Isaac S. Strawbridge, Thomas McCrea, John Collier, or Thomas Jenkins, or either of them, or their, or either of their heirs, executors or administrators, shall make due and sufficient recompense unto the said company for such loss, damage or injury, wasting, embezzling, spending, misapplying or unlawfully making way, then this obligation to be void—else in full force.” Strawbridge held the situation of “ticket and freight agent at Ellicotts Mills,” from the date of his appointment, up to the 21st July 1856.

At the last named date, there was due to the rail road company by Strawbridge, for passenger tickets sold by him at Ellicotts Mills, and for freights received by him at the same place, the sums, for which with interest thereon, the appellees recovered judgment in the court below. After the execution and delivery of the bond, (in the month of December 1854,) the rail road company made Ellicotts Mills a first class station, it having previously been a second class station. At the first class • stations a greater amount of freight is paid, than at the second class stations; the duties of the ticket and freight agent are the same at both, viz: to receive all sums payable at his station for both freight and passengers. The appellants contend that the change in the regulations of the company, by which Ellicotts Mills was made a first class station, worked a discharge of the sureties from the obligation of their bond; because in consequence of that change Straw-bridge, the ticket ’and freight agent, received a much larger amount of money than he would otherwise have done.

It is well settled that “the liability of a surety is not to be extended by implication beyond the terms of his contract.” 9 Wheaton, 703 , 2 N. R. (5 Bos. & Pull.,) 180. 12 East., 405. It is equally well settled that “any dealings with the principal debtor, by the creditor, which amount to a departure from the contract by which a surety is to be bound, and which by possibility might materially vary or enlarge the latter’s lia ³⁶⁷ bility, without his assent, discharges the surety.” 5 Md. Rep., 110 . 6 G. & J., 247 . The application of these principles to the present case must depend upon the true construction of the bond.

In the recital it is declared that the principal obligor “was appointed ticket and freight agent of the Baltimore and Ohio Rail Road Company at Ellicotts Mills,” and by the condition, the sureties bound themselves for the faithful performance by him of the duties of the said office, so long as he should hold the same. The liability under the bond to the extent of the penalty is for the officer generally as ticket, and freight agent at Ellicotts Mills, without reference to the fact, whether that was a second class or a first class station. In Burge on Suretyship, 54, the