ON MOTION FOE EEHEABING.
At the last term of this court we affirmed the judgment of the lower court on the ground that no harmful error had been committed at the trial. The charge upon the measure of damages is as follows: “You are instructed that the measure of damages in this case, in the event you find for plaintiff, will be the difference between what it cost the plaintiff to complete the building and the price for which Chaffee had agreed to construct and complete it.”
This charge is manifestly erroneous when applied to the facts, because it is undisputed that plaintiff did not complete the building according to the plans used by Chaffee, but according to other plans and at a less cost. It is clear that had this rule been applied the jury could have found nothing for plaintiff, even though they may .have found that Chaffee had breached his contract. Upon reconsideration we have concluded we were wrong in holding that the jury manifestly found for defendants on the issue of liability, and did not reach the question of damages. We can not safely say that such was the case in view of the fact that the verdict was general and does not indicate what issue controlled the jury in their action. Had they found for plaintiff on the issue of liability, they would have either been at a loss for a rule by which to measure the damage actually sustained or else must have found that, because the building she -completed after the collapse of the first cost less than the contract price of the first, she was entitled to nothing. For this reason the motion for rehearing will be granted.
We find no error in the charge with respect to the liability of the sureties. If without their consent the plans were materially changed after they signed the bond, they were released from liability.
Appellant complains of the action of the trial court in permitting the sureties, Bland and Wilson, to testify that the plans exhibited to them by Chaffee as referred to in the contract when they signed the bond, were not the same as those by which the building was constructed and which formed in part the basis of this suit. The ground of objection is that the plaintiff was not present at the time of their exhibition, and hence could not be bound by the representations of another. The objection is not applicable to the statement of Wilson, as he testifies to the presence of plaintiff at the time. It applies however to the testimony of Bland.
As regards the defense of the sureties, it is too well settled to admit of question that the surety in such case makes the principal his agent to deliver the bond to the obligee, and therefore, in the absence of knowledge on the part of the obligee, the fraud of the principal upon the surety can not acquit him of his obligation. It follows logically that if the principal exhibited to Bland a set of plans other than those referred to in the contract, accompanied by the statement that they were the plans agreed on, his statement would be mere hearsay if made in the absence of the obligee, and hence not admissible. It is of course true, however, that if it is made to appear that the plans were materially *572changed after the execution of the bond, and without the knowledge of the sureties, it would effect their discharge. There being, however, other evidence tending to show that the original plans were changed, it was admissible for both sureties to testify that they assented to the first set of plans and signed the bond with reference thereto, and did not know of or assent to the second set, and this whether the plaintiff was present or not. The evidence objected to was not admissible as bearing upon the issue of whether the plans had been changed, but upon the action of the sureties with reference thereto." The question is not whether the declaration of Chaffee could bind Mrs. Thompson in her absence, nor whether, if Chaffee imposed on the sureties, .his fraud would constitute a defense for them. The question is the admissibility of evidence to the effect that they signed the bond with reference to the first set of plans rather than the second, if the other evidence shows that changes were in fact made after the execution of the contract and bond.
With reference to the question of the agency of A. B. Calhoun it appears without contradiction that Mrs. Thompson signed the contract and all the checks with her own proper signature. It is also true that the plans sued on are the plans actually used in the construction of the building, and this is not disputed. Mrs. Thompson admits in her testimony and by this suit that she assented to them. It thus appears that whether or not Calhoun was her agent has no bearing upon the case. If there was in fact an original set of plans with reference to which the contract was made, she must have known of them, and as she signed the contract she must have personally assented to them. She unquestionably assented to the plans sued on. It is therefore by no act of Calhoun’s that she is sought to be bound. If, however, upon another trial the issue should become material, the well settled rule should be observed that agency can not be established by the acts and declarations of the alleged agent.
The trial court in his charge did not treat the alleged alteration in the plans as a valid defense as to Chaffee, and submitted only the issues of whether the collapse of the building was due to the alleged defective post, or that the failure of Chaffee to complete the building was due to some act of plaintiff. As the legal sufficiency of those defenses is not questioned, we make no further comment upon them.
Because of the error in the charge on the measure of damages, the motion is granted, the judgment reversed and the cause remanded.
Reversed and remanded.