complained of, or that he performed any act with reference thereto, mere proof of the violation of the contract 585 would entitle appellant to no more than nominal damages, to allow a recovery of which appellate tribunals will not reverse a trial court, unless it be essential to the determination of some legal right clearly invaded or involved: Olson v. Huntimer, 8 S. Dak. 220; 2 Ency. of Pleading and Practice, 535; Benson v. Waukesha, 74 Wis. 31; Delta Lumber Co. v. Williams, 73 Mich. 86; McAllister v. Clement, 75 Cal. 182; McCauley v. McKeig, 8 Mont. 389; Williams v. Brown, 76 Iowa, 643. On principle, there is no material distinction between this case and Waterman v. Boltinghouse, 82 Cal. 659, where the supreme court of California hold that "a real estate broker, who has a contract giving him the exclusive right to sell land within a certain time, cannot recover his commissions of his employer, who sells, himself, within the time, without the agency of the broker, unless he has produced a purchaser ready and willing to buy according to the terms of the contract." To the point that the actual detriment occasioned must be shown by competent evidence, and with reasonable certainty, in order to entitle appellant to anything more than nominal damages, see American etc. Assn. v. Hart, 2 Wash. 594. To the same effect see Howe Machine Co. v. Bryson, 44 Iowa, 159; 24 Am. Rep. 735; Houston etc. Ry. Co. v. Hill, 63 Tex. 381; 51 Am. Rep. 642. The evidence of statements made by respondent's secretary, to the effect that he was satisfied that the sales made by the Jasper agents to parties, some of whom resided in Minnehaha county, belonged to appellant; that he had written said agents, requesting them to turn over said commission; and that, in any event, he would see that one-half of said commission was turned over to appellant, was in the nature of a compromise, and clearly incompetent, because not shown to be within the scope of his authority: Plymouth Co. Bank v. Gilman, 4 S. Dak. 265; 46 Am. St. Rep. 786. As the record contains no error of which the appellant can rightfully complain, the order appealed from is affirmed.

EVIDENCE-PAROL, TO VARY WRITTEN CONTRACT.-It is well understood that parol evidence is not admissible to vary or contradict a written instrument, whatever may be its form: Monographic note to Harris v. Murphy, 56 Am. St. Rep. 659.

DAMAGES FOR BREACH OF CONTRACT.-One injured by a breach of contract is entitled to recover all his damages, including gains prevented as well as losses sustained, if they are certain, and such as might naturally be expected to follow the breach: State v. Andrews, 30 W. Va. 35; 15 Am. St. Rep. 884, and note. See, also,

1

Wakeman v. Wheeler etc. Mfg. Co., 101 N. Y. 205. 54 Am. Rep. 676, where the contract sued upon was like that in the principal case. CORPORATIONS-DECLARATIONS OF AGENTS.-Declara tions of the officers of a corporation bind it only when made in the course of the performance of their authorized duties, so that such declarations constitute part of the res gestae: Browning v. Hinkle, 48 Minn. 544; 31 Am. St. Rep. 691, and note; Agricultural Ins. Co. v. Potts, 55 N. J. L. 158; 39 Am. St. Rep. 637, and note.

SURETY, PRINCIPAL DEBTORS CANNOT CHANGE ONE OF THEIR NUMBER INTO.-One of two or more principal debtors cannot, by agreement among themselves, without the consent of their creditor, be changed in character from a principal to a surety, so that he will be released by those acts or omissions which release a surety.

PARTNERSHIP, EFFECT OF THE RETIRING OF ONE MEMBER WITH AN AGREEMENT THAT THE OTHERS WILL ASSUME THE LIABILITIES.--An agreement between partners that one of them shall retire from the firm, and that those remaining will assume and discharge the firm liabilities, unless consented to by its creditors, does not release the retiring partner from liabilIty, nor change his liability into that of a surety.

F. E. Dycus, for the appellant.

Marberry & Taylor, for the appellee.

111 BROWN, A. J. The court of civil appeals for the second supreme judicial district has certified to this court the following statement and question:

"Appellant sued appellees upon a debt for merchandise contracted by them while engaged in a mercantile business under the firm name of Wells & Chestnut. While so indebted the firm was dissolved by mutual consent, Chestnut purchasing the interest of Wells and assuming the liabilities of the concern. Thereupon Wells notified appellant of this fact, and requested that he be released, and, upon this being refused, requested, as claimed by him, that suit be brought against Chestnut as pro

vided in articles 3660 and 3661 of Sayles' Statutes, but this was not donc.

"The material question in the case, which we deem it proper to certify to your honors for decision, is this: Can one of two or more principal debtors, by agreement among themselves without the consent of the creditor, so change the character of his liability to such creditor from principal to surety as to make available to him the provisions of the articles above referred to? Or, in other words, did Wells, after notice to Shapleigh Hardware Company of the arrangement whereby Chestnut was to pay the debt, occupy the relation of surety thereon, so as to entitle him to the remedy and rights provided in the foregoing articles?"

There is some conflict of authority upon the question presented for our 112 consideration. We think that the weight of authority and sound reasoning support the proposition that one of two or more principal debtors cannot, by agreement with his codebtor or debtors, without consent of the creditor, so change the character of his liability from principal to surety as to entitle him from the creditor to the treatment and protection of a surety for the debt. In support of this position we cite the following authorities: Parsons on Partnership, 3d ed., 428; 1 Lindley on Partnership, 245; 1 Bates on Partnership, sec. 533, et seq; Story on Partnership, sec. 158; White v. Boone, 71 Tex. 712; Shepherd v. May, 115 U. S. 505; Whittier v. Gould, 8 Watts, 485; Rawson v. Taylor, 30 Ohio St. 389; 27 Am. Rep. 464; Wadhams v. Page, 1 Wash. 420; Skinner v. Hitt, 32 Mo. App. 409; Barnes v. Boyers, 34 W. Va. 304; Swire v. Redman, L. R. 1 Q. B. Div. 536; Hall v. Jones, 56 Ala. 493.

As supporting the contrary doctrine we cite the following: Brandt on Suretyship and Guaranty, sec. 36; Colgrove v. Tallman, 67 N. Y. 95; 23 Am. Rep. 90; Smith v. Sheldon, 35 Mich. 49; 24 Am. Rep. 529; Campbell v. Floyd, 153 Pa. St. 84; Williams v. Boyd, 75 Ind. 286; Gates v. Hughes, 44 Wis. 332.

In the case of White v. Boone, 71 Tex. 712, cited above, which involved very much the same state of facts as in the case submitted, Judge Collard said: "A retiring partner is not discharged from existing liabilities of the copartnership nor for any unexpired lease made before retirement. The fact that the remaining partners have agreed with him to pay the debts and exonerate him from all liabilities upon a lease or other executory contract would not affect the rights of the lessor. Such an agreement would be binding between the partners them

lves only, unless creditors became parties to the agreement for • consideration."

The opinion in that case, which was approved by the supreme court, covers every material point involved in the question certified, and in our judgment established the precedent in our sate in accordance with the weight of authority.

If it were necessary to adduce reasons in support of the position taken upon this question, we could do no better than to quote from the opinion delivered by Judge Stone in the case of Hall v. Jones, 56 Ala. 493, the following language: "When the goods were consigned by Hall & Long to Hannon, Brown & Jones, and received by them as commission merchants, this constituted a contract binding on each of the partners composing the latter firm to account for the goods or their proceeds. Such liability could not be canceled by any act of the latter firm alone or by any agreement its different members might make among themselves in which Hall & Long did not concur. It requires the same mutuality to vary or modify a contract as it does to create it in the first instance. The modification is only a species of contract." This doctrine that a contract when once made cannot be unmade without consent of both parties thereto, is so evidently sound, just, and correct, that no argument is required to sustain it.

The leading cases in America which support the opposite view of this 113 question are Colgrove v. Tallman, 67 N. Y. 95, 23 Am. Rep. 90, and Smith v. Sheldon, 35 Mich. 49, 24 Am. Rep. 529, both hereinbefore cited. Both of these cases rest upon the authority of Oakely v. Pasheller, 4 Clark & F. 207. In the former case Judge Folger, of the supreme court of New York, after stating the proposition that an agreement between two partners upon dissolution that one should pay all the debts of the firm constituted the retiring partner surety of the other as be tween themselves, continues in this language: "When it wa made known to Colgrove by Tallman that Barnes & Tallman had gone into the bargain which was thus made between them, Colgrove became bound to Tallman in equity to observe it." Thus he assumes the only proposition in controversy in the case-that is, that the agreement of the partners made between themselves, without consent of the creditor, imposed upon the latter the obligation to protect the rights of Colgrove as a surety for his codebtor. In support of this assumption he cites the case of Oakely v. Pasheller, 4 Clark & F. 207.

In the case of Smith v. Sheldon, 35 Mich. 49, 24 Am. Rep. 529, Chief Justice Cooley undertakes to reason to the conclu

AM. ST. REP., VOL. LIX.-50