Empire State Sur. Co. v. Hanson

• Decision Date: 10 January 1911
• Docket Number: 3,391.
• Citation: 184 F. 58
• Parties: EMPIRE STATE SURETY CO. v. HANSON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

184 F. 58

EMPIRE STATE SURETY CO. v. HANSON et al.

No. 3,391.

United States Court of Appeals, Eighth Circuit.

January 10, 1911

W. H Ferguson (Milton Smith and Chas. R. Brock, on the brief) for plaintiff in error.

Edwin W. Hurlbut and Harper M. Orahood, for defendants in error.

Before VAN DEVANTER and HOOK, Circuit Judges, and CARLAND, District judge.

VAN DEVANTER, Circuit Judge.

This writ of error challenges a judgment which the obligees in a surety bond recovered against the surety company. The bond was given to secure the faithful performance by the obligor of his contract for the erection of four houses in Denver, Colo. His contract required that the houses be completed on the 15th day of November, 1908, and the surety bond was made subject to the condition that the obligees should give to the surety company a written notice of any act of the contractor involving a loss for which the company would be responsible, and that this notice be given 'immediately after' the act came to the knowledge of the obligees. In their complaint the obligees, in addition to charging a failure to complete the houses within the time specified, alleged that they had well and truly performed each and every condition of the bond which was to be performed by them, and this latter allegation was denied in the answer, which also alleged that the obligees had failed to give notice in writing of the contractor's default immediately after it came to their knowledge. The only evidence produced upon the trial was that for the plaintiffs and at the conclusion thereof each party moved for an instructed verdict in its favor. The defendant's motion was overruled, and that of the plaintiffs was granted. This ruling is now called in question and it is necessary to consider whether there was any substantial evidence to sustain the verdict.

The discussion of counsel relates only to whether there was any evidence that the plaintiffs complied with the condition of the bond calling for notice of the contractor's default. There was evidence tending persuasively to show that on November 11, 1908, four days before the time fixed for the completion of the contract, the houses were in such a state of incompletion as very reasonably to generate the belief that it would be impossible for the contractor to complete them within the remaining time; that the plaintiffs, who were familiar with the state of the work, reached the conclusion that...