Barringer v. Fidelity & Deposit Co.

The opinion of the Court was delivered by Mr. Acting Associate Justice John E Cosgrove. These two appeals come from the Civil Court of Florence, in Florence County. By agreement of counsel they were heard together upon stipulations as to the facts and without a jury. They involve the liability of appellant as surety on a contractor’s bond furnished under the terms of a building contract with Atlantic Coast Eine Railroad Company covering certain additions to a building in the City of Florence, *12 owned by that company, and known as the Atlantic Coast Dine Y. M. C. A. The trial Court upheld the liability of the surety for the full amount claimed in each action. His order in the Barringer suit (which by stipulation also determined the Waters’ claim), is fully set forth in the record and should be reported. Appellant’s exceptions are twofold, as follows: “I. The Court erred, it is respectfully submitted, in refusing to find in favor of the defendant in each of the cases, for the reasons stated in its motion for a directed verdict, which were as follows: “1. In that the bond on which the suit is brought secured a purely private contract between J. M. Cawton and Atlantic Coast Dine Railroad Company, and was intended solely and exclusively for the protection of Atlantic Coast Dine Railroad Company, and the plaintiff, a third party and an utter stranger to said contract and bond, has no right of action against this defendant on said bond. “2. In that the bond on which the suit is brought in effect provided that all claims thereon had to- be filed within one year after the final payment to the contractor, and the present claim not having been so filed, the plaintiff cannot maintain the action. “3. In -that the bond was released by the contracting parties before this suit was brought, and being so released, all rights of action thereon, either by the original parties thereto or by third parties, are at an end. “II. The Court erred, it is respectfully submitted, in holding that the plaintiff was entitled to maintain this action under the provisions of Section 338 of the Code of Procedure of South Carolina of 1922, the error being that said section had no application to the facts of this case and if it is applied to such facts, the section operates to deprive the defendant of its property without due process of law, in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States.” *13 Exception I, to our mind, is fully, and satisfactorily disposed of by the order of the trial Judge. The application of Section 338, Code of Civil Procedure 1922, to the contract involved herein, which is questioned by Exception II, was entirely in consonance with the decisions of this Court, cited in the order appealed from. The case of Home Insurance Co. v. Dick, 281 U. S., 397, 50 S. Ct., 338, 74 L. Ed., 926, relied on by appellant in support of this exception, is without application There, the contract upon which suit was instituted in the State Court of Texas was made and was to be performed without the State of Texas, and hence, as held by the United States Supreme Court, was not governed by the laws of that State. The contract in this case is a South Carolina contract, made and to be performed within this State, and therefore governed by the laws of this State. Owen v. Insurance Co., 84 S. C., 253, 66 S. E., 290, 137 Am. St. Rep., 845. The orders appealed from in these cases are therefore affirmed. Mr. Chief Justice BeEase and Messrs. Justices StabeEr and Carter concur.