Wainright Trust Company v. United States Fidelity & Guaranty Company
Decision Date | 19 December 1916 |
Docket Number | 9,579 |
Citation | 114 N.E. 470,63 Ind.App. 309 |
Parties | WAINRIGHT TRUST COMPANY, RECEIVER, v. UNITED STATES FIDELITY AND GUARANTY COMPANY |
Court | Indiana Appellate Court |
From Hamilton Circuit Court; Meade Vestal, Special Judge.
Action by Wainright Trust Company, receiver for the firm of Holleran, Haverstick, Wheeler and Patterson, against the United States Fidelity and Guaranty Company. From a judgment for defendant, the plaintiff appeals.
Affirmed.
Gentry & Campbell, for appellant.
Pickens Moores, Davidson & Pickens and Fred C. Hines, for appellee.
This was an action by appellant, as receiver for the firm of Holleran, Haverstick, Wheeler & Patterson, in the court below, against appellee, as surety upon a contractor's bond, the contractor being one Black. The appellee demurred to appellant's complaint, the same being the fourth amended, for want of sufficient facts, which demurrer was sustained. This action of the court is the only error assigned.
The contract, which is made a part of the complaint by exhibit required said Black to place the gravel on two public highways of Hamilton county, known as the Eiler road and the Hunter road, which appellant's firm had contracted with the board of commissioners of said county to construct according to certain plans and specifications. Said Black agreed to place the gravel on said roads on or before January 1, 1913, and the contract was entered into on July 17, 1912.
The bond, which is also made a part of the complaint by exhibit, reads as follows:
The complaint alleges, in substance, that on March 10, 1915, the appellant was appointed receiver for said firm; that on July 17, 1912, said firm entered into said contract; that in consideration of said contract and as a part thereof said appellee, as surety for the contractor, Black, executed to said firm said bond for the faithful performance of said contract; that said contractor complied with the terms of said contract relating to said Hunter road and received the consideration therefor, but failed to perform any part of the work on said Eiler road; that on or before said January 1, 1913, said Black and said firm mutually agreed to and did extend the time for the completion of said work, and in consideration of such extension said firm agreed to waive any claim for damages for the work not being completed on or before said January 1, 1913, and that said Black upon his part agreed to pay, and did pay, to appellee the sum of $ 25 for the extension and security of said bond, of all of which facts said appellee then had knowledge; that after the extension of the time for the completion of said work appellant, said Black and appellee appeared before the board of commissioners of Hamilton county and obtained from it an order extending the time for the completion of said Eiler road; that appellee, knowing that said bond contained a provision "that in no event shall the surety be subject to any suit or action or other proceeding thereon that is instituted later than July 30th 1913," did, on or about November 20, 1913, accept from said Black an additional premium of $ 25 for the continuation and extension of the terms of said bond, and that appellee has ever since retained said sum; that on November 21, 1913, said firm, believing said bond was still in force and relying upon its security, together with said Black and one Hines, who was then and there the duly authorized local agent of appellee, appeared before said board, and that said Hines, as spokesman for said parties, asked for and was granted an order by said board extending the time for the completion of said Eiler...
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