Wachovia Bank & Trust Co v. J. F. Mulligan Const. Co
| Decision Date | 27 January 1931 |
| Docket Number | No. 554.,554. |
| Court | North Carolina Supreme Court |
| Parties | WACHOVIA BANK & TRUST CO. et al. v. J. F. MULLIGAN CONST. CO. et al. |
Appeal from Superior Court, Watauga County; Harding, Judge.
Action by the Wachovia Bank & Trust Company and others against the J. F. Mulligan Construction Company and Southern Surety Company. Judgment for plaintiff, and defendant last named appeals.
Reversed.
Civil action in the nature of a creditors' bill, brought under C. S. Supp. 1924, § 3846(v), as amended by Pub. Laws 1925, cc. 260, 269, to recover from surety on contractor's bond moneys loaned to contractor for use in carrying on work of construction.
The surety company lodged a motion for judgment as of nonsuit at the close of plaintiff's evidence, which was overruled, and the case was thereupon tried on the following determinative issues:
Judgment on the verdict for plaintiff, from which the defendant Southern Surety Company appeals, assigning errors.
A. J. Fletcher and Ruark & Ruark, all of Raleigh, for appellant Southern Surety Co.
John L. Rendleman and Hayden Clement, both of Salisbury, for appellee Wachovia Bank & Trust Co.
On September 23, 1927, the J. F. Mulligan Construction Company, contractor, entered into a written contract with the state highway commission to construct or improve a section of road in Watauga county, known as project No. 7720; and, to insure a compliance with the terms of said agreement, the state highway commission took from the contractor, as principal, and the Southern Surety Company, as surety, a bond in the sum of $43,800, conditioned, among other things, on the faithful performance of said contract, and that the contractor "shall well and truly pay all and every person furnishing material or performing labor in and about the construction of said roadway."
On April 6, 1928, the contractor borrowed from the plaintiff the sum of $2,744.38 for use in paying laborers for work done on or in and about said roadway, and executed its note therefor in which it was stipulated that said funds were to be so used, and they were...
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