The suggested controversy was purely hypothetical and based the supposed constitutional objections on the contingency that, on issues of fact, it might be judicially determined that Ariosa came within the statute, which complainants denied.

If the commissioner's conclusions were erroneous, the courts were open for the correction of the error, and the possibility that they might agree with the commissioner could not be laid hold of as tantamount to an actual controversy as to the effect of the Constitution, on the determination of which the result of the present suit depended. Indeed, in the only case called to our attention by counsel involving the status of Ariosa, the Court of Common Pleas of Lucas County, Ohio, held that it was not within the prohibition of the statute. White v. Ohio, 12 Ohio Nisi Prius Decisions, 659.

Reference to the Constitution to strengthen objections to a particular construction, or the pursuit of a certain course of conduct, is not sufficient to inyoke jurisdiction. Whatever grounds of equity interposition may have existed hère, and we express no opinion on that subject, the jurisdiction of the Circuit Court as a court of the United States depended alone on diverse citizenship. If the allegation of that fact had been omitted from the bill, the jurisdiction could not have been maintained.

Appeal dismissed.

MR. JUSTICE DAY took no part in the disposition of the case.

Statement of the Case.

191 U.S.

GUARANTY CO. v. PRESSED BRICK CO.1

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 39. Argued October 30, 1903.-Decided December 7, 1903.

The taking by a materialman of thirty and sixty day notes for materials supplied to one contracting with the Government and who had given the bond of a surety company in pursuance of the act of August 13, 1894, 28 Stat. 278, to the effect, among other things that he would "promptly make payment to all persons supplying him labor or materials" will not necessarily relieve the surety company from obligation under the ordinary rule that exonerates a guarantor in case the time fixed for performance of the contract by the principal be extended without his consent, where it does not appear that such extension was unreasonable, or that the surety was prejudiced thereby.

THIS was an action originally begun in the Circuit Court for the District of Colorado by the United States, for the use and benefit of the Golden Pressed and Fire Brick Company, (hereinafter called the Brick Company,) against John A. McIntyre and the United States Fidelity and Guaranty Company, (hereinafter termed the Guaranty Company,) upon a bond executed April 11, 1898, in pursuance of an act of Congress of August 13, 1894, 28 Stat. 278, c. 280, to secure the performance of a contract theretofore entered into by McIntyre with the Secretary of the Treasury to furnish all the labor and materials and do all the work required for the foundation and superstructure of a mint in the city of Denver.

The questions certified are founded upon the following facts: McIntyre, having agreed to erect the building, executed a bond to the United States, with the Guaranty Company as surety, conditioned not only upon the faithful performance of his work to erect the building according to his contract, and to any changes or additions made thereto, but to "promptly make payment to all persons supplying him labor or material in

1 Docket title, United States Fidelity and Guaranty Company v. United States, for the use and benefit, etc., of the Golden Pressed and Fire Brick Company.

the prosecution of the work contemplated by said contract." During the progress of the work the Brick Company furnished the contractor brick for the construction of the building to the amount of $6517.55, which had been reduced by payments to $2711.65, for which the action was brought.

The defendant denied its liability upon the ground that on October 1, 1898, the Brick Company, without the knowledge or consent of the Guaranty Company, granted to McIntyre an extension of the time of payment of the balance then due on account of the purchase price of such brick, and accepted two promissory notes, one for thirty days after date, (October 1,) and another sixty days after September 15, 1898, the first one of which was paid. There was no allegation that, by reason of the extension of the time of payment of the sum so due on October 1, the Guaranty Company had sustained any loss or injury, but it was insisted that it was nevertheless thereby released and discharged from any further liability upon such bond.

The Circuit Court held that the extension did not operate to discharge the Guaranty Company from its liability, and the Circuit Court of Appeals, to which the case was carried, certified to this court the following questions of law arising from these facts:

"First. Did the action of the Brick Company on October 1, 1898, in taking two promissory notes, one for the sum of $1,275 and the other for the sum of $2,508.10, for the amount of the Brick Company's account, then due and payable, one of said notes running for thirty days and the other for sixty days, and each bearing ten per cent interest per annum from date, operate to discharge the United States Fidelity & Guaranty Company from its liability, assumed under the provisions of the aforesaid bond, to pay to the Golden Pressed & Fire Brick Company the amount of said indebtedness?

"Second. Did the extension of the time of payment of the balance due from said McIntyre, on October 1, 1898, by the taking of two notes in the manner and form aforesaid, operate VOL. CXCI--27

Argument for Plaintiff in Error.

191 U.S.

to discharge the United States Fidelity & Guaranty Company of its liability to pay the amount of said indebtedness to the Brick Company, irrespective of the question whether said Guaranty Company did or did not sustain an actual loss or damage on account of such extension?"

Mr. Andrew W. Gillette for plaintiff in error.

The obligation of the plaintiff in error is that of suretyship, and in determining its liability to the Brick Company the rules of law applicable to contracts of suretyship in general are to be applied. United States v. Am. Bonding and Trust Co., 32 C. C. A. 420; 89 Fed. Rep. 925, 929; United States v. McIntyre, 111 Fed. Rep. 590, 597. The terms and extent of this obligation are to be ascertained by reading the bond in the light of the contract between McIntyre and the Brick Company. The bond alone does not contain all the surety's contract with the Brick Company. Brown v. Markland, 22 Ind. App. 652; 53 N. E. Rep. 295, and cases cited; Ulster County Savings Inst. v. Young, 161 N. Y. 23; 55 N. E. Rep. 483.

The statutory bond in suit imposes upon the surety a dual obligation: (1) to the government, for the completion of the principal contract; (2) to laborers and materialmen, to see that they are promptly paid. These obligations are entirely separate and distinct. United States &c. v. Nat. Surety Co., 34 C. C. A. 526; 92 Fed. Rep. 549; United States &c. v. Rundle et al., 40 C. C. A. 450; 100 Fed. Rep. 400; Griffith v. Rundle, 23 Washington, 453; 63 Pac. Rep. 199; Omaha Bldg. & Const. Co. v. United States F. & G. Co., 116 Fed. Rep. 145; United States v. Freel, 92 Fed. Rep. 299; affirmed 99 Fed. Rep. 237; Dewey v. State, 91 Indiana, 173; Conn v. State, 125 Indiana, 514; 25 N. E. Rep. 443; Doll v. Crume, 41 Nebraska, 655; 59 N. W. Rep. 806; Kauffman v. Cooper, 46 Nebraska, 644; 65 N. W. Rep. 796; Lyman v. City of Lincoln, 38 Nebraska, 794; 57 N. W. Rep. 531; United States v. Stratford, 65 N. Y. Supp. 1051; Steffes v. Lemke, 40 Minnesota, 27; 41 N. W. Rep. 302.

191 U. S.

Argument for Plaintiff in Error.

Any change whatever in the contract for which the surety is liable, made without his consent, will operate his discharge. United States v. Freel, 92 Fed. Rep. 299, 306, affirmed 99 Fed. Rep. 237; Reese v. United States, 9 Wall. 13, 21; Bethune v. Dozier, 10 Georgia, 235.

Extension of time of payment, if made without his consent, is such a change as will release a surety. 2 Brandt on Suretyship and Guar. § 342; 1 Story's Eq. Jur. § 326; New Hampshire Sav. Bank v. Colcord, 15 N. H. 119; 41 Am. Dec. 685; Winne v. Colo. Springs Co., 3 Colorado 155, 161; Martin v. Thomas, 24 How. 315; Smith v. United States, 2 Wall. 219.

If a creditor take the note of a debtor, payable at a future date, for a debt then due, he thereby extends the time of payment of, and suspends his right of action upon, the debt until the maturity of such note, and thereby releases from further obligation any person who was bound as surety for the payment of such debt. United States v. Am. Bonding and Trust Co., 32 C. C. A. 420; 89 Fed. Rep. 925, 929; Rees v. Berrington, 2 Ves. Jun. 540; 2 White and Tudor's Lead. Cas. Eq. 1867, 1869. See American cases cited to the same proposition in note Ibid., 1915; Chickasaw Co. v. Pitcher, 36 Iowa, 593, 598; Myers v. Wells, 5 Hill (N. Y.), 463; Appleton v. Parker, 15 Gray (Mass.), 175; Okie v. Spencer, 2 Whart.. (Pa.) 253, 257; Hart v. Hudson, 6 Duer, 305; Norton v. Roberts, 4 T. B. Monroe (Ky.), 491; Fellows v. Prentiss, 3 Den. 512, 518; 45 Am. Dec. 484, and cases cited in note; Templeman v. Tex. Brewing Co. (Tex. 1896), 35 S. W. Rep. 935; Elyton Co. v. Hood, 121 Alabama, 373; 25 So. Rep. 745; Brooks v. Wright, 13 Allen (Mass.), 72; Benson v. Phipps, 87 Texas, 578; 29 S. W. Rep. 1061; Andrews v. Marrett, 58 Maine, 539.

The implied agreement of the Brick Company for extension of time of payment of McIntyre's indebtedness was based upon a sufficient consideration. Myers v. Wells, 5 Hill (N. Y.), 463, 464; St. Paul Trust Co. v. St. Paul Chamber of Com., 70 Minnesota, 486; 73 N. W. Rep. 408; Benson v. Phipps, 87 Texas, 578; 29 S. W. Rep. 1061, and cases cited; Drescher v, Fulham, 11 Colo. App. 62.