City Of Sumter v. United States Fid. &. Guar. Co

• Decision Date: 13 April 1921
• Docket Number: (No. 10604.)
• Citation: 106 S.E. 778
• Court: South Carolina Supreme Court
• Parties: CITY OF SUMTER. v. UNITED STATES FIDELITY &. GUARANTY CO. et al.

106 S.E. 778

CITY OF SUMTER.
v.
UNITED STATES FIDELITY &. GUARANTY CO. et al.

(No. 10604.)

Supreme Court of South Carolina.

April 13 1921.)

[106 S.E. 779]

Watts, J., dissenting in part.

Appeal from Common Pleas Circuit Court of Sumter County; H. F. Rice, Judge.

Action by the City of Sumter against the United States Fidelity & Guaranty Company and George W. Waring. From an order denying the motion of the United States Fidelity & Guaranty Company for dismissal of the action against it, and denying the motion of defendant George W. Waring for change of venue, the defendants appeal. Order denying dismissal affirmed; order refusing change of venue reversed.

Wingate Waring, of Columbia, for appellants.

Epps & Levy, of Sumter, for respondent.

WATTS, J. This is an appeal from orders of his honor Judge Rice overruling two motions, the first being made by the United States Fidelity & Guaranty Company to dismiss the complaint as to it, and the second being by Geo. W. Waring for a change of venue from Sumter county to Richland county, the suit being on a surety bond furnished by Waring to plaintiff.

Waring is principal and defendant company is surety. The plaintiff claims breach of condition of the bond, and asks damages for a specified sum.

There are five exceptions. The first and second exceptions insist that his honor was in error in overruling the motion of defendant company, because it appeared from the bond sued on that it was expressly agreed that after a certain time no action should be, and that the time agreed on and provided was that after February 1, 1917, no action should be, against the surety company, and that no action was commenced until September 24, 1919, or more than two years after the date agreed on by the parties to the contract, after which it was specifically agreed by the plaintiff that the defendant company could not be sued thereon. The complaint alleges that the contract entered into between plaintiff and defendant Waring was July 12, 1911. The bond contained this clause:

"That in no event shall the surety be liable for a greater sum than the penalty of this bond, or subject to any suit, action, or other proceeding thereon that is instituted later than the 1st day of February, A. D. 1917."

The bond was dated November 27, 1911. Under the clause the surety company was released from all liability unless suit was instituted by February 1, 1917. As action was not brought within the time provided for, the contract, as to the liability of...