Cavarnos-Wright Co. v. . Blythe Brothers Co.

Barnhill, J. The conditions of the contractor’s bond of the defendant A. II. Guión & Company, upon which the United States Casualty Company of New York is surety, executed and delivered to the State Highway and Public Works Commission, are identically the same as those contained in the bond under consideration in Lumber Co. v. Lawson, 195 N. C., 840. There the contractor’s surety was made an original party defendant by the plaintiff, whose action was based upon allegations of negligence of the contractor. The bonding company demurred. The order of the judge overruling the demurrer was reversed by this Court. *585 As tbe questions bere presented are fully discussed and decided in the opinion in that case, which cites numerous authorities in support of, the conclusion there reached, it is needless for us to again undertake to review the law or to extend the discussion. It may be noted that the plaintiff in that action, which originally made the bonding company a party defendant, was the party injured and damaged by the alleged negligence of the contractor. Although it had stated a cause of action for damages caused by the negligent conduct of the contractor, it was held that as to the bonding company no cause of action was stated. Here the defendant is not the party injured. It denies liability and asserts that if it is liable then the contractor is primarily liable and it is secondarily liable. Thus, it appears that the appealing defendant does not now have and will not have, in any event, any claim against the contractor until and unless liability is established and the issue as to primary and secondary liability is answered in favor of the appellant. Surely its rights are no greater than were those of the plaintiff in the Lawson case, supra. Furthermore, the statute expressly provides that in no event shall more than one action be instituted against the bonding company, ch. 260, Public Laws 1925, and the procedure is expressly provided. The appellant insists that the appearance of the bonding company was in fact general and not special. This is immaterial. The court below declined to make the bonding company a party defendant. If, by a general appearance, it came into court, it went out under the order of the court from which the appellant appeals. The judgment of the court below is affirmed on authority of Lumber Co. v. Lawson, supra, and cases there cited. Affirmed.