184 F. 58 | 8th Cir. | 1911
This writ of error challenges a judgment which the obligees in a surety bond recovered against the surety company. The bond was given to secure the faithful perform-
The discussion of counsel relates only to whether there was any evidence that the plaintiffs complied with the condition of the bond calling- for notice of the contractor’s default. There was evidence tending persuasively to show that on November 11, 1908, four days before the time fixed for the completion of the contract, the houses were in such a state of incompletion as very reasonably to generate the belief that if would be impossible for the contractor to complete them within the remaining time; that the plaintiffs, who were familiar with the state of the work, reached the conclusion that it could not be completed within that time; and that they accordingly sent a written notice to that effect to the surety company, which notice w-as duly received. But because this notice was sent four days before, and not immediately after, the time fixed for the completion of the contract, and for no other reason, it is said that the notice was not 'effective and-'did not satisfy' the terms of the bond. We are of a different opinion. It well may be that the obligees were not bound to anticipate the contractor’s default, and could have waited until the 15th of November, or the day thereafter, to give the prescribed notice; but it .does not follow that they were bound to wait. The words “immediately after,” in the condition relating to notice, obviously were used, not for the purpose of forbidding or preventing a well-grounded anticipatory notice, such as was given, but for the purpose of insuring a prompt notice, such as would enable the surety company to take appropriate precautions for its own protection. When Upon the lltli of-November it became reasonably certain that there would be a default, it was in full keeping with this purpose that the obligees should give the notice then. In doing so they but gave to the surety company whatever of additional advantage was incident to their timely action. :So, treating the evidence as presenting only a question of law in irespect of the. sufficiency of the notice given, as must be done in the presence of the concurring requests for a directed verdict, we are of opinion that no error was committed in directing a verdict for the plaintiffs.
Complaint also is made of the ruling whereby a demurrer to the second defense of the answer was sustained. That defense alleged that the obligees, without the knowledge or consent of the surety company, extended the time for the completion of the contract from November 15th to January 1st, and that the consideration for this extension was a promise on the part of the contractor to complete the buildings by January 1st, if he did not complete them by November 15th. This asserted extension was not obligatory upon the obligees, because it was not supported by any lawful consideration. The contractor’s agreement to do either all or less than he already was bound to do was not such a consideration. Besides, there was no allegation that the contractor relied upon the asserted extension, or that his default was in anywise induced by it. Therefore the ruling- was right.
Further complaint is made of two rulings relating to the amendment of the pleadings; but there was no reversible error in this, because such matters are committed largely to the discretion of the trial court, and because there is in the record no suggestion of an abuse of discretion in this instance.
The judgment is affirmed.