256 F. 773 | 5th Cir. | 1919
This is a writ of error to a judgment in favor of the defendant in error, plaintiff in the District Court, against the plaintiff in error, which was defendant in that court, upon two
The requirement of the exertion of all reasonable diligence and activity was for the benefit of the defendant in error, which it had the election to insist upon or waive. If the defendant in error failed to treat a less amount of diligence on the part of the contractors as a default, it thereby waived the default arising therefrom, and was not required to give the plaintiff in error notice of what was not in that event a default, within the meaning of the contract. The record shows that the defendant in error first claimed a default only when .the contractors gave notice that they would no longer proceed with the contract, and of this default the required notice is conceded to have been given.
“A finding that the defendant’s sole representative so understood the proposed contract hardly would be reconcilable with one that the defendant, in consenting to become the contractors’ surety, was influenced by the consideration that the contract protected it from liability for losses resulting from payments or advances made by the plaintiff to the contractors for such a purpose. However that may be, evidence above mentioned of payments to the contractors for work contracted for made after that work was done was enough to make it a question for the jury whether the contractors’ abandonment of the work before it was completed entailed upon the plaintiff a loss which was chargeable against the defendant, the contractors’ surety. In view of that evidence, the second above-mentioned defense cannot be regarded as having been so made out as to justify the giving of the instruction complained of.” Board of Commissioners v. Equitable Surety Co., 246 Fed. 633, 636, 158 C. C. A. 592.
Tbe court below rightly refused the direction of a verdict, and properly instructed the jury on the issue in conformity with the opinion of this court. In any event, it seems difficult to see how any unauthorized advances could effect more than a destruction of defendant in error’s right to have them included in its damages, and all the requested instructions refused on this question went to the extent of denying all right of recovery to the defendant in error.
Finding no error in the record, the judgment is affirmed, with costs.
Affirmed.