ACCESSORY CONTRACT. One made for assuring the performance of a prior con tract, either by the same parties or by others ; such as suretyship, mortgages, and pledges.
It is a general rule, that payment or release of the debt due, or the performance of a thing required to be performed by the first or prin cipal contract, is a full discharge of such ac cessory obligation, Pothier, Ob. 1, c. 1, s. 1, art. 2, n. 14; id. n. 182, 186 ; see 8 Mass. 551; 15 id. 233; 17 id. 419 ' • 4 Pick. Mass. 11; 8 id. 422; 5 Mete. Mass. 310 ; 7 Barb. N. Y. 22; 2 Barb. Ch. N. Y. 119; 1 Hill. & D. N. Y. 65 ; 6 Penn. St. 228 ; 24 N. H. 484; 3 Ired. No.
C. 337 ; and that an assignment of 'the cipal contract will carry the accessory tree t with it. 7 Penn. St. 280 ; 17 Serg. & R.
Penn. 400; 5 Cow. N. Y. 202 ; 5 Cal. 515 , 4 Iowa, 434; 24 N. H. 484.
2. If the accessory contract be a contract by which one is to answer for the debt, default, or miscarriage of another, it must, under the statute of frauds, be in writing, and disclose the consideration, either explicitly, or by the use of terms from which it may be implied.
5 Mees. & W. Exch. 128 ; 7 id. 410 ; 5 Bar new. & Ad. 1109; 1 Bingh. N. c. 761 ; 6 Bingh. 201; 9 East, 348 ; 8 Cush. Mass. 156; 15 Penn. St. 27 ; 20 Barb. N. Y. 298; 13 N. Y. 232; 4 Jones, No. C. 287. Such a contract is not assignable so as to enable the assignee to sue thereon in his own name. 21 Pick. Mass. 140; 5 Wend. N. Y. 307.
3. An accessory contract of this kind is discharged not only by the fulfilment or release of the principal contract, but also by any ma terial change in the terms of such contract by the parties thereto ; for the surety is bound only by the precise terms of the agreement he has guarantied. 2 Nev. & P. 126 ; 9 Wheat.
680; 1 Eng. L. & Eq. 1; 3 Wash. C. C. 70; 12 N. II. 320; 13 id. 240. Thus, the surety will be discharged if the right of the creditor to enforce the debt be suspended for any defi nite period, however short; and a suspension for a day will have the same effect as if it were for a month or a year. 2 Ves. Sen. Ch. 540; 2 White & T. Lead. Cas. 707 ; 5 Ired. Eq. No. C. 91; 7 Hill, N. Y. 250; 3 Den. N. Y. 512 ; 2 Wheat. 253 ; 28 Vt. 209. But the surety may assent to the change, and waive his right to be discharged because of it. 13 N. H. 240; 2 McLean, C. C. 99 ; 5 Ohio, 510 ; 8 Me. 121.
4. If the parties to the principal contract have been guilty of any misrepresentation, or even concealment, of any material fact, which, had it been disclosed, would have deterred the surety from entering into the accessory contract, the security so given is voidable at law on the ground of fraud. 5 Bingh. N. c. 156 ; 3 Barnew. & C. 605; 1 Bos. & P. 419 ; 9 Ala. N. s. 42; 2 Rich. So. C. 590; '10 Clark & F. Hou. L. 936.
So the surety will be discharged should any condition, express or implied, that has been imposed upon the creditor by the acces sory contract, be omitted by him. 8 Taunt. 208; 14 Barb. N. Y. 123 ; 6 Cal. 24 ; 27 Penn St. 317 ; 6 Hill, N. Y. 540; 9 Wheat. 680; 17 Wend. N. Y. 179, 422.
An accessory contract to guarantee an ori ginal contract, which is void, has no binding effect. 7 Humphr. Tenn. 261 ; and see 27 Ala. N. s. 291.