People v. Southern Sur. Co.
| Decision Date | 07 July 1924 |
| Docket Number | 10839. |
| Citation | 76 Colo. 141,230 P. 397 |
| Parties | PEOPLE, for Use of WESTERN ACCEPTANCE CO., v. SOUTHERN SURETY CO. |
| Court | Colorado Supreme Court |
Rehearing Denied Nov. 10, 1924.
Department 2.
Error to District Court, City and County of Denver; S.W. Johnson Judge.
Action by the People of the State of Colorado, for the use of the Western Acceptance Company, against the Southern Surety Company. Judgment for defendant, and plaintiff brings error.
Affirmed.
Russell W. Fleming, Atty. Gen., Charles Roach Deputy Atty. Gen., and Dana, Blount & Silverstein, of Denver for plaintiff in error.
W. E Clark, of Denver, for defendant in error.
This cause is before us on error to a judgment for the defendant in an action in the name of the people, for the use of the Western Acceptance Company, against the defendant in error. The action was upon a bond given to the people of the state of Colorado, in which the Colorado Contracting Company was principal, and the defendant in error surety. The principal on the bond had entered into a contract with the state highway commission for the construction of some road, and the bond was given to secure the due performance of that contract. The bond recites that it is conditioned that the principal, the contractor, will----
'at all times well and faithfully discharge his duties under said contract, and shall and will perform all the obligations thereof, and shall and will not indemnify and save harmless the state of Colorado, and all persons whomsoever, from any and all damage or loss which the said state of Colorado or any other persons whomsoever may or shall suffer by reason of the default of the contractor in the performance of this contract, or by reason of any neglect or carelessness, act or omission on the part of said contractor, his agents, servants, or employés, or any of them, in the performance of this contract, and shall and will indemnify and save harmless the employés, laborers, material men, and all holders of just claims against the said principal, arising out of the performance of this contract, against the failure of the said principal to pay them all sums due them, and shall and will indemnify and save harmless the said state of Colorado to the extent of any and all payments in connection with the carrying out of said contract which the said principal may be required to make under the law, and shall and will in all respects keep and comply with the provisions of the law of said state, protecting and securing the claims of laborers, subcontractors, and material men, and save said state of Colorado harmless therefrom.'
The defendant in the suit filed a demurrer to the complaint denying the legal capacity of the plaintiff to sue, asserting that the suit could be brought only by the state highway commission; and second, that the complaint did not state a cause of action; and third, that there was a defect of parties defendant in that the principal on the bond is not made...
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