Blackburn v. Morel

Russell, J. 1. This was an action against the principal and the sureties on the bond of a building contractor, conditioned that he would faithfully perform the stipulations of a building contract. It was testified by the plaintiff that the principal in the bond had not complied with the contract in certain material particulars, and that he made payments to the principal, from time to time, in excess of the amount authorized by the contract and prior to the times when they were due, and failed to require of him the affidavits provided for in the contract, in reference to work done and material furnished for the building. Meld: This conduct on the part of the plaintiff tended to increase the risk of the sureties on the bond and operated to discharge them from all liability thereon. It follows that the verdict against the sureties was contrary to the evidence and should have been set aside." 2. The petition as amended was not subject to any of the demurrers filed . thereto. 3. The verdict against the principal obligor in the bond was authorized by the evidence, and no error of law was committed 'which would require a reversal of the judgment overruling the motion for a new trial as to him. i. Where a suit is brought against the principal and the sureties on a bond, and the plaintiff obtains verdict and judgment, and one writ of error is prosecuted to this court by all of the defendants, and another writ of error by the sureties only, the questions involved in both records being identical so far as the sureties are concerned, and the judgment against them is reversed, the second writ of error will be dismissed and the costs thereof assessed against the plaintiffs in error. In case 4744, judgment reversed in part md affirmed in part. In ease 4747, writ of error dismissed.