196 N.W. 96 | S.D. | 1923
This is an action brought by Davison county and its board of county commissioners upon a bond given to insure the faithful performance of a drainage contract pursuant to the provisions of section 8465, Rev. Code 1919. Davison county is the obligee named in the bond. The defendant surety company demurred to the complaint , upon the ground that it did not state facts sufficient to constitute a cause of action and upon the ground that several causes of action were improperly united. The demurrer was overruled.. The surety company appeals.
The points made by appellant are:
(a) “The bond upon which this action is brought runs to Davison county alone. That without showing any assignment, or right or interest to the proceeds thereof in any one else, five other parties designating themselves as county commissioners have united as plaintiffs, and this whole body, consisting now of Davison county and five individuals, seek to recover damages on such bond.
(b) “That the bond on its face shows that-Davison county should in case of default of the principal contractor ‘promptly after the occurrence and within three days after the discovery of the default’ notify the surety by registered mail, and failure to give such notice discharges the surety. No allegation- appears of such notice having been given.”
As to point (b) it is only necessary to state that there is an allegation in the complaint which conforms to section 2366, Rev. Code 1919.
It is clear that but one cause of action is stated in the complaint and that the complaint -does state a cause of action against the surety.
The order appealed from is affirmed.
Note. — Reported in 196 N. W. 96. See,. Headnote (1), American Key-Numbered Digest, Drains, Key-No. 49, 19 C. J. Sec. *170 (see 1925 Anno.); (2) Principal and surety, Key-No. 155, 32 Cyc. 128 (see 1924 Anno.).
On Rev. Code 1919, Sec. 2366, see annotations, Kerr’s Cyc.1 Codes, 1920, Civ. Pro., Sec. 457.