U.S. Fidelity & Guaranty Co. v. Trustees of Baptist Church of Columbus

• Decision Date: 22 May 1907
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. TRUSTEES OF BAPTIST CHURCH OF COLUMBUS ET AL.
• Court: Kentucky Court of Appeals

102 S.W. 325

UNITED STATES FIDELITY & GUARANTY CO. v. TRUSTEES OF BAPTIST CHURCH OF COLUMBUS ET AL.

Court of Appeals of Kentucky.

May 22, 1907

Appeal from Circuit Court, Hickman County.

"Not to be officially reported."

Action by the trustees of Baptist Church of Columbus, Ky. and others, against the United States Fidelity & Guaranty Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Shelbourne & Smith, for appellant.

Jno. Brummal & Son, for appellees.

CARROLL C.

The Baptist Church of Columbus contracted with R. B. Reese to make certain repairs and improvements on its building for the agreed price of $1,244, and required him to execute a bond for the faithful performance of the contract, which he did with the appellant as surety. Reese failed to comply with his contract, and the church brought this action against his surety the appellant to recover $750, the sum for which it became liable. From a judgment in favor of the church, this appeal is prosecuted.

Appellant resisted payment, and asks a reversal for two reasons: First that the petition shows upon its face a failure on the part of the church committee to give the notice which the contract obligated them to give to the surety in the bond; second that payments were made to Reese in excess of the amount the contract provided he should receive. The contract of the surety stipulated that "no liability shall attach to the surety hereunder unless in the event of the default on the part of the principal in the performance of any of the terms covenants, or conditions of the contract, the obligee shall promptly upon knowledge thereof and in no event later than thirty days after the occurrence of the default deliver to the surety at its office in the city of Baltimore written notice thereof with a statement of the principal facts showing such default and the date thereof." Under the contract with Reese, he was to be paid $400 when all the framing, brick, lumber, sand, and other material was placed at the building site; $400 when the building was inclosed and all outside work finished; and the remainder on completion of the building and the acceptance of the work.

The petition, to which a general demurrer was filed and overruled, after stating fully the terms of the contract with Reese, as well as the obligation entered into by the surety company, averred that the church had in every particular complied with, performed, and observed all the conditions and provisions specified in the contract to be complied with on its part, and notified the surety in due time of the default of Reese. It is insisted that the petition is fatally defective in failing to distinctly charge that the notice specified in the contract with the surety had been given in the time mentioned in the contract; that it is not sufficient to aver generally in an action on a bond...