This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The addition of the name of a joint promisor or maker is generally held to be such a material alteration as to discharge the parties who have not assented thereto.1 While it is not necessary to prove that an alteration is prejudicial to the party discharged thereby in order to show that it is material, the possibility of prejudice in case of such addition of a new party has been suggested to be that such alteration, if valid, might change the jurisdiction before which the original obligor could be brought.2
The courts are nearly unanimous in their application of this principle to the case of sureties. If A executes an instrument as principal and B executes it as a co-obligor, as surety for A, the addition of a new party to the instrument as co-obligor without B's consent discharges B.3 Some exceptions exist to this rule. If the law provides for additional sureties, the prior sureties are presumed to contract with full knowledge that subsequent sureties may be added, and they are therefore not discharged by such addition. Thus where the statute authorized the county board to require either an additional bond or additional sureties on the original bond of the county treasurer, and additional sureties are required and sign their names, the original sureties are not released.4 In some cases the fact that the additional sureties signed as sureties for all prior parties and not as co-sureties with the original sureties,5 or that they signed as guarantors,6 has been held not to discharge a prior surety.
13 Tyler v. First National Bank. 150 Ky. 515, 150 S. W. 665; York v. James, 43 N. J. L. 332.
14 Hence recovery could be had thereon after it was restored to its original form. James v. Tilton, 183 Mass. 275, 67 N. E. 326.
15 Huntington v. Finch, 3 O. S. 445.
1 England. Gardner v. Walsh, 5 El. & Bl. 83.
Canada. Reid v. Humphrey, 6 Ont. App. 403.
Alabama. Brown v. Johnson, 127 Ala. 292, 85 Am. St. Rep. 134, 51 L. R. A. 403, 28 So. 579.
Colorado. Hochmark v. Richler, 16 Colo. 263, 26 Pac. 818.
Indiana. Houck v. Graham, 106 Ind. 195, 55 Am. Rep. 727, 6 N. E. 594.
Iowa. Hamilton v. Hooper, 46 la. 515, 26 Am. Rep. 161; Sullivan v. Ru-disill, 63 la. 158, 18 N. W. 856; Browning v. Gosnell, 91 la. 448, 59 N. W.
340; Beem v. Farrell (la.), 108 N. W. 1044.
Missouri. Bank v. Myers, 50 Mo. App. 157; Allen v. Dornan, 57 Mo. App. 288.
Ohio. Wallace v. Jewell, 21 O. S. 163, 8 Am. Rep. 48.
Oklahoma. Oklahoma Sash & Door Co. v. American Bonding Co., - Okla. -, 170 Pac. 511 [denying rehearing, 153 Pac. 1151]; Bank of Commerce v. Webster, - Okla. -, L. R. A. 1918F, 696, 172 Pac. 942.
Texas. Harper v. Stroud, 41 Tex. 367.
Washington. Handsaker v. Peterson, 71 Wash. 218, 128 Pac. 230.
2 Shipp v. Suggett, 48 Ky. (9 B. Mon.) 155; Wallace v. Jewell, 21 O. S. 163, 8 Am. Rep. 48.
3 Houck v. Graham, 106 Ind. 195, 55 Am. Rep. 727, 6 N. E. 594; Hall v. McHenry, 19 la. 621, 87 Am. Dec. 451;