Illinois Sur. Co. v. Huber

• Decision Date: 22 December 1914
• Docket Number: No. 8471.,8471.
• Parties: ILLINOIS SURETY CO. et al. v. HUBER et al.
• Court: Indiana Appellate Court

57 Ind.App. 408

107 N.E. 298

ILLINOIS SURETY CO. et al.

v.HUBER et al.

No. 8471.

Appellate Court of Indiana, Division No. 2.

Dec. 22, 1914.

Appeal from Circuit Court, Marion County; Charles Remster, Judge.

Action by William D. Huber and others, trustees, against the Illinois Surety Company and another. Judgment for plaintiffs, and the defendant Illinois Surety Company appeals. Affirmed.Charles B. Clarke and Walter C. Clarke, both of Indianapolis, for appellant. T. J. Moll and J. O. Carson, both of Indianapolis, for appellees.

IBACH, J.

On December 4, 1908, appellees entered into a contract with appellant Franklin in which he was to furnish all the materials and perform all the labor for the electric wire system in a building being erected by them, for the stipulated sum of $1,976. To insure the faithful performance of his contract, he, together with the Illinois Surety Company, gave his bond to appellees to indemnify them against loss in the event of a breach of such contract. The contractor Franklin failed fully to perform his contract, and appellees completed the part left undone by him. This action was then brought to recover damages for the contractor's default and for $300 liquidated damages provided for in the building contract. Defendant Franklin was defaulted. The cause was tried by the court, and resulted in a judgment for appellees for $391.64. Appellant surety company alone appeals, and contends that the cause should be reversed, because the trial court erred in overruling its separate demurrers to the complaint and in overruling its separate motion for a new trial.

[1] It is first claimed that although plaintiffs have averred generally that they complied with all the conditions of the contract and bond on their part required to make the bond effective, yet, by the specific averments of the complaint, it is made to appear that they did not comply with a certain section of the bond, which by its terms constituted a condition precedent to the liability of appellant, and which provided that the surety shall be notified in writing of any act, omission, or default on the part of the principal, etc., which may involve a claim or loss for which the said surety is or may be responsible thereunder, within 24 hours after the occurrence of such act, omission, or default shall have come to the knowledge of the owner or his, its, or their agents.

Copies of the contract and bond are made parts of the complaint, and these must be considered in connection with all its material averments in construing its sufficiency to state a cause of action.

The specific averments of the complaint, which it is claimed show a failure of the performance of such condition precedent, are substantially as follows: *** Franklin began work under the contract, but wholly failed and refused to complete it. He stopped work before it was half done, and practically abandoned it, and refused and failed to proceed, although requested to do so. That he did not finish the work before January 20, 1909, but defaulted for more than 15 days, for which the plaintiffs are entitled to $300. That on the 27th day of January, 1909, the architects certified in writing to plaintiff that Franklin had failed in the performance of said work and had neglected and refused to complete the same, and, in their opinion, such neglect and failure were sufficient grounds for terminating his employment and contract and finishing the work by plaintiffs, and a written notice was served upon the contractor that, unless he proceeded within three days thereafter to finish and complete this work, the plaintiffs would do so. On the same day, and within 24 hours from the time it was discovered and determined that Franklin would not proceed with said work, these plaintiffs notified...