135 S.E. 123 | N.C. | 1926
Let it be observed in limine that this is not a contest between the Murchison National Bank, a creditor of the contractor, and the surety company over the retained percentages in the hands of the owner, or the balance due the contractor and withheld under the contract. It is alleged that more than said balance was required to complete the contract after the failure and adjudication in bankruptcy of the contractor. Nor is it a case where moneys have been advanced for the payment of laborers and materialmen and assignments taken of *404
their claims against the contractor. Trust Co. v. Porter,
"Now, therefore, the condition of this obligation is such that if the principal shall faithfully perform the contract on his part, and satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the owner from all costs and damages which it may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and shall pay all persons who have contracts directly with the principal for labor and material, then this obligation shall be null and void; otherwise it shall remain in full force and effect."
It is conceded that the provisions of C. S., 2445, requiring said bond to be conditioned "for the payment of all labor done on and materials and supplies furnished for the said work" are to be read into the bond and considered as if they had been written therein. Electric Co. v. DepositCo.,
The plaintiff does not come within the class of persons protected by the statute, but it says the language of the bond is broad enough to include its claim, being, as it is, a lender of money to the contractor for use in carrying on the work of construction. Aderholt v. Condon, 189; N.C. 748;Town of Cornelius v. Lampton, ibid., 714; Title Guaranty and Surety Co. v.Coffman, Dobson Co.,
We do not think the language of the bond, by fair intendment, should be construed to include persons other than those intended to be *405
protected by the statute. Smiley v. State,
It is the general holding that a bank furnishing money to a contractor doing public work, for use in paying the claims of laborers and materialmen, without more, does not come within the protection of a statutory bond conditioned to pay all persons supplying the principal with labor or materials in the prosecution of his work. Hardaway v. Nat. SuretyCo.,
The demurrer was properly sustained, but it was error to dismiss the action as against the contractor. He has been properly served, and the plaintiff is entitled to proceed in its action against him.
The costs of the appeal will be taxed against the plaintiff.
Modified and affirmed.