Opinion
Appeal from the District Court, Sixth Judicial District, County of Sacramento.
On the 10th day of June, 1872, the defendant Burrows entered into a contract in writing with the plaintiff to erect for him a house and furnish the materials and complete the same on or before the 1st day of September, 1872. The plaintiff was to pay him $ 5200, and in consideration of the premises, the defendants, Burrows as principal, and Bauquier and Gwynn as sureties, executed, to the plaintiff, a bond in the penal sum of $ 4000, conditioned that Burrows should perform his contract. The house was not completed within the time, and this action was brought on the bond to recover damages. The sureties defended on the ground that the plaintiff had extended the time to complete the contract. They relied on the following agreement endorsed on the back of the contract:
" It is hereby agreed between the parties to this written contract, that the said second party shall have until the 1st day of November, 1872, in which to complete the work in said contract described, and it is understood that this shall not in no wise interfere with or lessen the liabilities of the sureties upon the bond given by said second party."
" In witness whereof the parties hereunto set their hands and seals this 2d day of September, 1872.
" M. Barber. [seal.]
" J. Burrows. [seal.]
" Wm. Gwynn. [seal.]"
The plaintiff recovered judgment, and the sureties appealed from the judgment and from an order denying a new trial.
COUNSEL:
Beatty & Denson, for the Appellants.
R. C. Clark and L. S. Taylor, for the Respondent.
OPINION By the Court:
The instrument of September 2, 1872, was never completely executed. It is evident upon an inspection of the writing itself, that it was intended to be signed by all the parties to the contract upon which it was endorsed. These parties were the two principals in the contract and the two sureties upon the bond attached to and forming a part of the contract. It was signed by but three of these persons.
As the contract for the extension of time was not complete, it was not obligatory.
Judgment and order denying a new trial affirmed. Remittitur forthwith.