due. Held, that as the assignee of a contract to pay money the plaintiff has a right to maintain the action.
Opinion filed Nov. 23, 1921.
Appeal from the District Court of Hettinger County, Pugh, J.
Affirmed.
Charles Simon, for appellants.
All contracts of suretyship must be strictly construed to impose upon the surety only those burdens clearly within its terms and must not be extended by implication or presumption. 32 Cyc. p. 73; Sather Banking Co. v. Arthur R. Briggs Co. 138 Cal. 724; 72 Pac. 352.
The obligee of a bond is the only one who can enforce the liability of surety thereon, unless by virtue of a statute, or of an express pro- vision in the instrument. 32 Cyc. 123, also pp. 125-127. The assignment of a bond or contract of suretyship terminates the contract. 32 Cyc. 84; 21 R. C. L. pp. 974, 975 and 976.
“The sale of part of leased premises by the lessor, without the consent or knowledge of the lessee’s sureties, discharges the latter, though the lease gives the lessor the right to sell the entire premises on the giving of a specified notice. The consent which the parties to a lease must have from a surety thereon in order to alter materially the lease may be implied from the language of the lease. 21 R. C. L. p. 1017, {| 65.
Sureties are entitled to stand on the strictness of their obligation. Young v. Young, (Ind.) 52 N. E. 776.
Whether one’s name is signed to an instrument as principal or surety, he is, of course, equally bound by the obligation. 21 R. C. L. 954.
One who undertakes to guarantee payment of the debt of another has the right to make the terms and conditions upon which he will assume the burden, and if the conditions so assumed are not complied with or waived the guarantor is discharged. Williamson Heater Co. v. Whitman, 183 N. W. 404 (Ia.) White’s Administrator v. Life Ass’n. of America, 35 Am. Rep. 45; 63 Ala. 419; Distinction between surety and indemnitor, 21 R. C. L. pp. 958-959; Distinction between surety and guarantor, 21 RK. C. L. 949-950.
Where two or more make a joint promise each are liable to the
