American Surety Co. v. Fidelity Trust Co.

Citations

• 179 F. 699
• 103 C.C.A. 29
• 1910 U.S. App. LEXIS 4697

Syllabus

<p>3. Bonds (§ 62*) — Construction—Extent of Liability.</p> <p>A bond given by a contractor, conditioned for the faithful performance of the contract, although in terms an absolute obligation to pay a certain sum on default by the principal, is modified by the accompanying conditions, and on breach of the contract by the principal the obligee can recover thereon only the damages proved.</p> <p>[Ed. Note. — For other cases, see Bonds, Cent. Dig. §§ 59-72; Dec. Dig. § 62.*]</p> <p>2. Contracts (§ 171*) — Construction—Divisibility—Damages Recoverable for 'Breach.</p> <p>A sculptor entered into a contract with plaintiff to execute a bronze statue; the contract providing that 10 per cent, of the stipulated price should be paid when the sketch model of the statue was approved, 10 per cent, when the staff model was completed and placed on its pedestal, and other payments when successive steps of the work were completed, and requiring the sculptor to give a bond on the receipt of each payment conditioned for the completion of the contract in accordance with its terms. Two payments were made, and bonds executed pursuant to such requirement, signed by defendant as surety, after which the principal made default. Held, that the contract was an entire one for the completion of the statue, and not a series of independent contracts for the completion of each step of the work, and that the failure to fully perform it was a breach of the condition of each bond given, and entitled plaintiff to recover thereon as substantial damages at least the amount of the payments made for which it had received no consideration.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 754-757; Dec. Dig. § 171.*</p> <p>Divisibility of contracts,' see note to Saunders v. Short, 30 C. C. A. 467.]</p>