Opinion of the Court-Leonard, C. J. 14 Nev. 309, and might content ourselves with the conclusion there reached, but shall pursue the inquiry somewhat further. If there is any principle well settled it is that the liability of a surety is not to be extended, by implication, beyond the terms of his contract, which is strictissimi juris. "To the extent, and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by the change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract, and if he does not assent to any variation, and a variation is made, it is fatal." (Miller v. Stewart, 9 Wheat. 703; Smith v. United States, 2 Wall. 234.) And in Ludlow v. Simond, 2 Cai. Cas. 58, the reason of the rule is thus plainly stated: "This rule is founded on the most cogent and salutary principles of public policy and justice. In the complicated transactions of civil life, the aid of one friend to another, in the character of surety or bail, becomes requisite at every step. Without these constant acts of mutual kindness and assistance the course of business and commerce would be prodigiously impeded and disturbed. It becomes then excessively important to have the rule established that a surety is never to be implicated beyond his specific engagement. Calculating upon the exact extent of that engagement and having no interest or concern in the subject-matter for which he is surety, he is not to be supposed to bestow his attention to the transaction, and is only to be prepared to meet the contingency when it shall arise in the time and mode prescribed by the contract. The creditor has no right to increase his risk without his consent; and can not, therefore, vary the original contract, for that might vary the risk." And in 2 Am. Lead. Cas. 390, it is said: "It is evident, moreover, that in order to a recovery on a contract by one man, for performance by another, there must not only have been no assent by the plaintiff to the default for which he brings the suit, but he must himself have fulfilled every condition precedent to the right of suit. * * * But this rule is wholly irrespective of the direction taken by Opinion of the Court-Leonard, C. J the consideration when executed, and applies with the same force whether the suit be against a principal or guarantor; the only difference being that the principal will be answerable on a new implied contract for whatever he actually receives, whether it be that for which he stipulated or not, while the liability of the guarantor is founded solely on the original agreement, and will not accrue unless that be pursued in every particular. The requisitions of the contract may, no doubt, be waived or varied without impairing or defeating its force or efficacy, but then the waiver by the principal can not bind the guarantor." In Bethune v. Dozier, 10 Ga. 240, the court say: "We hold it to be the duty of the obligee to aver and prove the performance, not substantially, but literally, of the original agreement. It is a condition precedent to his right of recovery." In Dobbin v. Bradley, 17 Wend. 422, the defendant guaranteed the paper of Smith, to be made payable at a particular bank. Smith gave his note to the plaintiffs, in the course of business mentioned in the guaranty, but made it payable generally, or, in other words, without. specifying any place of payment. And although the note was deposited in the particular bank, before it came to maturity, it was held that the defendant was not liable, and the court refused to go into the inquiry whether the surety had been injured, saying it was enough that the case did not come within the terms of the contract. In Maynard v. Boyd, 5 Md. 109, the court thus expressed itself: "The indorsement by the defendant of Pyfer's notes to the plaintiff was based upon the security offered by the mortgage, and therefore the mortgage may be regarded as the consideration of the agreement into which the surety entered when he consented to indorse the notes. The terms of the mortgage, therefore, must be strictly complied with by the plaintiff, in order to bind the defendant as indorser. One of these terms is, there shall be no sale of the mortgaged property until default of the principal debtor to pay the notes upon their maturity. We think this part of the contract between the several parties thereto has been departed from in the sale which has taken place under the Opinion of the Court-Leonard, C. J. circumstances detailed in the evidence. * * X But it may be said that, although this might have been a departure from the strict letter of the contract between the parties; yet it can not be shown that the indorsers were prejudiced thereby, or their liability enlarged. Whether this was or was not the result of the premature sale does not vary the question. Any dealings with the principal debtor by the creditor which amount to a departure from the contract by which the surety is to be bound, and which, by possibility, might materially vary or enlarge the latter's liability without his consent, operates as a discharge of the surety." So, in the case at bar, the contract to pay weekly, which was the consideration of the promise of the sureties, must have been strictly complied with in order to bind them. We refrain from making other quotations, but, in addition, the following authorities will be found, upon examination, to sustain the views of this court heretofore and now expressed upon the point under consideration: Grieve v. Smith, 23 U. C. (Q. B.) 27; Wright v. Russel, 3 Wilson (C. P.) 530; Myers v. Edge, 7 T. R. 254; Walrath v. Thompson, 6 Hill, 541; Whitcher v. Hall, 5 B. & C. 270; Wright v. Johnson, 8 Wend. 513; Walsh v. Bailie, 10 Johns. 180. If we were permitted to make the inquiry we could not know that the sureties were not injured by plaintiff's failure to make the payments as agreed. It may be that Cook and Miller would have been able to satisfy the liens if they had been paid weekly. It may be they required the money in other business operations, and that the loss of it so crippled them that they were unable to perform their agreement. But speculations are useless. The law is so plainly written on this subject that but one conclusion is possible-which is, that by plaintiff's own laches the sureties are released. The judgment of the court below is affirmed. Opinion of the Court-Leonard, C. J. [No. 1,058.] M. MEYER, APPELLANT, V. VIRGINIA & TRUCKEE RAILROAD COMPANY, RESPONDENT. DECLARATIONS OF AN AGENT-WHEN INADMISSIBLE IN EVIDENCE.-The declarations of an agent in charge of a station and warehouse belonging to the defendant, at the time the goods of plaintiff and his assignors were burned therein, as to what occasioned the fire: Held, upon the facts stated in the opinion, inadmissible in evidence. INSTRUCTIONS-REFUSAL OF, WHEN WILL BE SUSTAINED.-Where the record on appeal fails to show that an instruction was applicable to the evidence, the action of the court in refusing it will be sustained even if the reason given by the court for its refusal was not sufficient. IDEM-NOT PERTINENT TO ISSUES.-Instructions that are not pertinent to any issues in the case should be refused, although they embody correct propositions of law in the abstract. IDEM REPETITION OF, WHEN NOT PREJUDICIAL.--Plaintiff complained of an instruction given by the court of its own motion: Held, that even if it was erroneous it could have done no harm to plaintiff, because it was but a repetition, in substance, of one given at his request. APPEAL from the District Court of the Third Judicial District, Lyon County. The facts are stated in the opinion. Lewis & Deal, for Appellant: The points and authorities cited by counsel appear in the opinion. B. C. Whitman, for Respondent. By the Court, LEONARD, C. J.: It is alleged in the complaint herein, that on the thirteenth day of September, 1879, the plaintiff and other persons named were the owners of certain personal property of the value of two thousand six hundred and forty-nine dollars and eighty-five cents, which property was, on said day, stored by defendant in its warehouse, at the Mound House, on the line of its road; that the claims for damage of the other parties mentioned were, prior to the commencement of this action, for a valuable consideration paid Opinion of the Court-Leonard, C. J. by plaintiff, sold, assigned, transferred, and set over to plaintiff; that defendant's locomotives were so imperfectly constructed and so deficient in the usual and ordinary appliances used on locomotives to prevent the escape of fire, sparks, and coals, and said locomotives were so carelessly run and managed by defendant's agents, servants, and employés, that said warehouse was fired and completely destroyed by fire carelessly and negligently dropped and thrown from said locomotives; and all said personal property in the complaint described was destroyed by said fire, whereby plaintiff and the other parties mentioned were damaged in the sum of two thousand six hundred and fortynine dollars and eighty-five cents. Defendant answered and admitted that the warehouse and the said property of plaintiff and his assignors were destroyed by fire at the time and place alleged; but, among other things, denied all allegations charging imperfect construction of its engines and deficiency in the usual and ordinary appliances used thereon to prevent the escape of fire, sparks, and coals. It denied all allegations of carelessness or negligence in running or managing its engines, or that the fire was caused by any act or omission of it or any of its agents, employés, or servants; or that plaintiff, or any of his assignors, had been damaged in any sum by reason of any carelessness or negligence of the defendant or any of its agents, servants, or employés. The verdict and judgment were for the defendant. This appeal is taken from an order overruling a motion for new trial and from the judgment. 1. It is urged by appellant that the court erred in refusing to allow witness Burnett to answer the following question, asked for the purpose of showing that defendant's engines fired the warehouse, viz.: "At the time the building was burning, did you make any statement to J. R. Shaw as to what occasioned the fire? If so, what was that statement?" Shaw was one of the owners of goods burned, and one of plaintiff's assignors, and he was also asked to state whether or not Burnett told him, at the time the building was burning, what occasioned the fire, and, if so, what that |