National Surety Co. v. Long
Citations
- 125 F. 887
- 60 C.C.A. 623
- 1903 U.S. App. LEXIS 4226
Syllabus
<p>1. Contract—Action for Breach—Care or Negligence of Obligor.</p> <p>The care or negligence with which an obligor, who failed, sought to perform his contract, is no defense to an action for its breach. The only test of the right to recover is the existence of the breach of the covenant upon which the action is based.</p> <p>2. Same—Construction.</p> <p>Under an agreement that a contractor shall complete a building by the 1st day of September, 1901, and that in case of a failure to finish it by September 15, 1901, he shall pay damages at the rate of $5 for each day after that date until the building is finished, the time for the completion of the structure is September 1, 1901.</p> <p>8. Same—Immediate Notification.</p> <p>“Immediately” means before the happening of other events—forthwith. A covenant to notify a surety of the default of his principal immediately is not performed by mailing a notice 11 days after the known default.</p> <p>4. Same—Warranties and Conditions Precedent—Effect of Breach.</p> <p>The immateriality of a warranty or of a condition precedent made by the agreement of the parties, and the innocuousness of a failure to perform it, do not nullify or mitigate the fatal effect of such a failure prescribed by their agreement</p> <p>5. Principal and Surety—Release of Surety.</p> <p>A surety is discharged if a condition known to the obligee, upon which the surety agreed to be bound, is not complied with.</p> <p>6. Contract—Party ,in Default Cannot Recover.</p> <p>He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform it.</p> <p>(Syllabus by the Court.)</p>
How courts have described this case
Verbatim parenthetical descriptions written by other courts when citing this decision. Ranked by citation-network relevance.
- explaining that an affirmative defense is one that admits to the complaint, but avoids liability, wholly or partly, by new allegations of excuse, justification, or other negating matters
- denying the request to strike an affirmative defense “that the time for which Plaintiff seeks compensation is de minimis”
- addressing affirmative defenses arguing plaintiff failed to satisfy an element of a claim
- “An affirmative defense is one that admits to the complaint, but avoids liability, wholly or partly, by new allegations of excuse, justification, or other negating matters.”
- “[W]hen a defendant labels a specific denial as an affirmative defense, the proper remedy is not to strike the defense, but instead to treat it as a denial.” (citations omitted)
Source: CourtListener parenthetical corpus (CC0).
Judges: Devanter, Hook, Sanborn
Read full opinion on CourtListenerSourced from CourtListener / Free Law Project (CC0).
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