Pearson v. . Simon

CoNNOR, J. There was no error in the refusal of the court below to allow the motion of the defendants, at the close of all the evidence, for judgment as of nonsuit. Assignments of error based on exceptions to the rulings of the court on this motion cannot be sustained. The evidence for the plaintiff tended to show that the defendant W. A. Simon is indebted to the plaintiff in the sum of $1,813.00, with interest from 10 October, 1931, as alleged in the complaint. This evidence, *354 although contradicted in some respects by the evidence for the defendants, was properly submitted to the jury. The contention of the defendant Maryland Casualty Company that it is not liable to the plaintiff in this action under the terms of its bond cannot be sustained. Conceding that under the decision of this Court in Moore v. Industrial Company, 138 N. C., 304, 50 S. E., 687, the said defendant is not liable under its bond, strictly construed, for the amount due by the defendant W. A. Simon to the plaintiff for services as superintendent of the work performed by the said defendant under his contract with the city of Kinston, we think that in the instant case the bond must be construed together with the contract, which is referred to and made a part of the bond. It is expressly provided in the contract that the bond shall be conditioned for the payment of wages due not only to laborers, but also to foremen and superintendent. It is well settled as the law in this jurisdiction that a contractor’s bond executed and filed pursuant to the provisions of the contract, and in compliance therewith, and the contract must be construed together, in order to determine the extent of the liability of the surety under the bond. In Mfg. Co. v. Blaylock, 192 N. C., 407, 135 S. E., 136, it is said: “The principle is well established by many authoritative decisions, here and elsewhere, that in determining the surety’s liability to third persons, on a bond given for their benefit and to secure the faithful performance of a building contract as it relates to them, the contract and bond are to be construed together. Mfg. Co. v. Andrews, 165 N. C., 285, 81 S. E., 418. The obligation of the bond is to be read in the light of the contract it is given toi secure, and ordinarily the extent of the engagement, entered into by the surety, is to be measured by the terms of the principal’s agreement. Brick Co. v. Gentry, 191 N. C., 636, 132 S. E., 800, and cases there cited.” When the contract and the bond in the instant ease are read together, it is manifest that it was the intention of the parties to the contract as well as of the parties to the bond, that the bond should be liable for the wages not only of laborers, but also of foremen and superintendents employed by the contractor in the performance of his contract. Indeed, in their answer to the complaint in this action the defendants do not deny their liability to the plaintiff on the cause of action alleged in the complaint. They put in issue only the amount due by the defendant W. A. Simon to the plaintiff for his services under his contract of employment. Their contention as to such amount was not sustained by the jury. The contention of the defendants that it was error for the trial court, after the plaintiff had rested his case, and after the motion of the defendants for judgment as of nonsuit under the statute, C. S., 567, was denied, *355 and before either of tbe defendants bad offered evidence to allow tbe plaintiff to offer additional evidence, cannot be sustained. Tbe action of tbe court was witbin its discretion, and for tbat reason is not reviewable by tbis Court. Tbe rights of tbe defendants under tbe statute were not affected by tbe action of tbe court. It might have been otherwise if their motion at tbe close of tbe evidence for tbe plaintiff bad been allowed. Conceding, however, tbat tbe action of tbe court of which tbe defendants complain was not in accord with tbe practice heretofore obtaining in this State, we are of opinion tbat no barm resulted to tbe defendants in tbe instant case from such action. Tbe facts shown by tbe additional evidence were not determinative of tbe right of tbe plaintiff to have bis ease submitted to tbe jury. Tbe purpose and effect of tbe evidence was to bring plaintiff’s case witbin tbe principle on which Moore v. Industrial Company, supra, was decided. Tbis principle has no application in the instant case. Tbe judgment in tbis action is affirmed. No error.