337 A.2d 669 | Conn. Super. Ct. | 1973
The plaintiff subcontractor brought suit against the defendant Fidelity and Deposit Company of Maryland, hereinafter referred to as the defendant, on a surety bond issued for general contractors engaged in construction of public housing. Such a bond was required by §
This court sustained the demurrer of the general contractors to the first count of the plaintiff's amended complaint. It was held that since no allegation was made that the condition precedent to the general contractors' payment obligation under the subcontract (payment by the Hartford housing authority to the general contractors for work alleged to have been done by the plaintiff subcontractor) had been fulfilled, there was no cause of action against the general contractors on the subcontract price.
In effect, the demurrer here contends that since no cause of action was made out against the defendant's principals on the surety bond, no cause of action exists against the defendant on the surety bond. *66
Section
It is a fundamental precept of suretyship law that the liability of the surety is conditioned on accrual of some obligation on the part of the principal; the surety will not be liable on the surety contract if the principal has not incurred liability on the primary contract. 1 Brondt, Suretyship and Guaranty, c. 3; Grant, Suretyship, c. 1 § 17; Restatement, Security, c. 5; Stearns, Suretyship (5th Ed.) § 7.20. "In the absence of limitations or restrictions contained in the (surety) contract, the liability of the surety is coextensive with that of the principal." 72 C.J.S., Principal and Surety, § 92. "The surety's promise is in the same terms as that of the principal and the consequent duty similar and primary . . . ." Arant, Suretyship § 17.
The Connecticut statutory provision requiring surety bonds in public structures contracts, General *67
Statutes §
It must be acknowledged that bonds furnished in compliance with the mandate of General Statutes §
The plaintiff's complaint fails to set forth a viable cause of action against the principals to the surety bond. Accordingly, no cause of action has been made out against the surety, and the demurrer of the defendant must be sustained.
That holding is not, however, to say that the plaintiff is absolutely precluded from recovery under the surety contract. See, e.g., Public MarketCo. v. Portland,
This court holds only that under the circumstances alleged in the second count of the plaintiff's complaint, there is no viable cause of action against the defendant on the surety bond. That holding is made on the assumption that there are no limitations or restrictions contained in the surety bond.
The demurrer is sustained.