Marshalltown Stone Co. v. Louis Drach Const. Co.

Citations

• 123 F. 746
• 1903 U.S. App. LEXIS 4939

Syllabus

<p>t. Bond—Action for Breach—Limitation bt Terms of Contract.</p> <p>A provision of a bond given to secure tbe performance of a Contract that any action thereon must be brought within six months after the breach of the contract is a reasonable one, and constitutes a complete defense by the surety to an action brought against it thereon more than six months after the alleged breach of the contract.</p> <p>% Same.</p> <p>An action for breach of a contract brought against a party to the contract and the surety on a bond given by him to secure its performance, as to the principal defendant, is in fact based on the contract, to which the bond is merely an incident, and a limitation contained in the bond as to the time within which an action thereon must be brought is not available to him as a defense.</p> <p>8. Limitations—Time of Commencement of Action—Effect of Amendment of Petition.</p> <p>The filing of an amended and substituted petition merely to supply omissions in the original petition, and to state the cause of action with more certainty, does not constitute the commencement of a new action for the purpose of a defense of limitation.</p> <p>¶ 3. See Limitation of Actions, vol. 33, Cent. Dig. §§ 543, 544.</p>