Leghorn v. Nydell

Citations

• 39 Wash. 17
• 80 P. 833
• 1905 Wash. LEXIS 803

Syllabus

<p>Indemnity—Guaranteeing Building Contract—Pleading—Complaint—Sufficiency—Performance of Conditions Precedent—Legal Effect of Contract. In an action upon an indemnity bond guaranteeing the performance of a building contract, a complaint is not subject to objection, made for the first time at the trial, for failure to plead compliance with conditions precedent, where the bond and contract are not set out but are pleaded according to their legal effect and no conditions precedent appear.</p> <p>Same—Discharge of Surety—Payment of Installment Prior to Its Maturity. In an action upon an indemnity bond guaranteeing a building contract, the surety cannot complain of a payment made by the owner to the contractor prior to its falling due, when the same was deducted from the last payment due and benefited rather than prejudiced the surety.</p> <p>Continuance—Denial—Absence of Witness. A continuance to secure the attendance of a witness is properly refused where two other continuances had been granted for the purpose, the witness could not be found by the sheriff, and his mental condition was such that it was doubtful if he would be competent to testify. ■</p> <p>Indemnity—Release of Surety—Delay of Contractor—Failure of Owner to Take Charge of Building. The owner of premises is under no obligation to take charge of and complete a building to lessen the demurrage charges on the contractor’s default by delay, when the contractor was endeavoring in good faith to complete the building, and failure so to do does not release a surety on an indemnity bond.</p>