222 N.W. 269 | S.D. | 1928
Defendant executed a contract bond, conditioned that contractors on a federal aid highway project in this state
Plaintiff supplied to a subcontractor doing the work the following items:
Sept. 24, 1925, 2 fresnos at $25.50.......................$ 51.00
Sept. 25, 1925, 1 No. 6553 Timken bearing (for tractor).. 20.31
Sept. 25, 1925, 2 No. 2560 Timken bearings at $15.28 (for tractor) ........................................... 30.56
Sept. 25, 1925, 1 No. 6554 Timken bearing (for tractor).. 20.31
March 18, 1926, 1 light globe ...............■............ 1.25
May 8, 1926, 39^' of 40" grader belt (for elevator)...... 148-25
May 27, 1926, 1 cat-hole cleaner for 40" machine (for elevator) .'.......................-.................. 24.00
$295.68
—on which only $100 was paid, and for the balance of $195.68 plaintiff brings this action against the surety company.
The ninth finding of fact made by the court was to the effect that the supplies were furnished by plaintiff to the subcontractor and were used in the construction of the work embraced in the contract, and that “the said appliances were used and practically worn out in carrying out the provisions of the contract; that the claim of the plaintiff for said appliances is a just claim- which was incurred in the carrying out of the provisions of the contract.” None of the evidence is brought before this court, and we must therefore assume that the evidence was sufficient to justify this finding.
From a judgment in favor of plaintiff, the original contractor and the surety company appeal.
Appellants contend that the surety bond was a mere offer of guaranty,' and, no acceptance of such offer having been found
It is next contended that the items making up the plaintiff’s claim were not incurred “in carrying out the provisions of the contract.” It is said that they were not materials such as would be consumed in carrying out this contract, but that they were lasting materials that would be used “in carrying out this contract and other contracts.” This argument asks us to assume that finding No. 9, to the effect that the appliances were used and practically worn out in carrying out the provisions of the contract, is not supported by the evidence, and we certainly cannot do this, where appellant has brought none of the evidence whatever into the record. If the finding that-they were “practically worn out” may be said to imply that they were not completely worn out, appellant,
The judgment appealed from is affirmed.