Opinion
In Bank.
Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.
H.A. Van C. Torchiana, of San Francisco, for appellant.
Mastick & Partridge, of San Francisco, for respondent.
PER CURIAM.
The application for a hearing in this court after decision by the District Court of Appeal for the Third District is denied.
In denying the application we think it advisable to say that in our judgment the opinion of the District Court of Appeal contains some general language relative to the liability of a surety that may be misleading. A surety is exonerated in like manner with a guarantor, for section 2840 of the Civil Code so expressly provides, and a guarantor is exonerated, except in so far as he may be indemnified by the principal, " if by any act of the creditor, without the consent of the guarantor, the original obligation of the principal is altered in any respect, or the remedies or rights of the creditor against the principal, in respect thereto, in any way impaired or suspended." Where the original obligation of the principal is so altered, or the remedies or rights of the creditor against the principal so impaired or suspended it is thoroughly settled by our decisions that no inquiry will be allowed as to whether or not the surety was in fact injured thereby, and the cases relied upon by petitioner here in this connection involve such a situation, as, for instance, the effective granting by the creditor to the debtor of an extension of time within which to pay a note, or a material change in the terms of a contract. But the opinion of the District Court of Appeal sufficiently shows that the facts of this case are not such as to bring it within the provisions of section 2819 of the Civil Code. The original obligation of the principal was in no way attempted to be altered, and there was no act of the owner which in any way impaired or suspended the owner's right as against the principal. And the only provision of our Civil Code to be considered here is subdivision 2 of section 2840, as the opinion assumes. As applied only to such a case, there is nothing in the opinion which in our judgment is erroneous.
SLOSS, J., dissents from the order denying the application for a hearing in this court.