Keeble v. Fidelity & Deposit Co. of Baltimore
| Decision Date | 27 October 1926 |
| Docket Number | 250. |
| Citation | 135 S.E. 141,192 N.C. 416 |
| Parties | KEEBLE v. FIDELITY & DEPOSIT CO. OF BALTIMORE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Barnhill, Judge.
Action by C. G. Keeble, trustee of P. R. Ashby, bankrupt, against the Fidelity & Deposit Company of Baltimore and others, to recover a balance due on a road construction contract. From a judgment for the named defendant on agreed facts, plaintiff appeals. Affirmed.
Surety on bond of contractor building highway is entitled, on payment of amount of bond, to retained percentages, in preference to trustee in bankruptcy of contractor.
J. C Little, of Raleigh, for appellant.
S Brown Shepherd, of Raleigh, for appellee Fidelity & Deposit Co.
The controlling facts are as follows:
(1) In December, 1921, P. R. Ashby, contractor, entered into a contract with the state highway commission of North Carolina to build a road in Wilson county, known as project No. 291.
(2) The Fidelity & Deposit Company of Baltimore, Md. (hereafter called the surety) became surety on the contract bond and thereby obligated itself, among other things, to save the state highway commission harmless from "any and all claims of persons furnishing material or performing labor in and about the construction of said roadway," etc.
(3) The actual work of construction had been completed or practically so, but with many claims for labor and material unpaid, on January 4, 1924, when the contractor was adjudged a bankrupt and the plaintiff herein appointed trustee in bankruptcy, as provided by law.
(4) On default by the contractor, the surety was compelled, under the terms of its bond, to pay the claims of laborers and materialmen, amounting to more than $9,000.
(5) At the time of the adjudication in bankruptcy, the state highway commission had in its hands, under the provisions of the construction contract, retained percentages of the contractor's account, amounting to $8,098.92.
(6) These retained percentages had been duly assigned to the surety at the time of the execution of the surety bond.
Upon these, the facts chiefly pertinent, the appeal presents the single question as to whether the aforesaid retained percentages should be paid to the trustee in bankruptcy for distribution among the general creditors of the bankrupt or to the surety, under and by virtue of the terms of its contract and bond.
The judgment...
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