Crane Co. v. Longest & Tessier Co.

Allen, J. The demurrer is based upon that part of tbe bond in which the defendant agrees that it “shall pay all persons who have contracts directly with the principal for labor or materials,” the defendant surety company contending that the plaintiff did not furnish the material, for which recovery is sought, by contract directly with Longest-Tessier Company, the principal, but that the contract of sale was with the Com-stock Electric Company. The allegations of the complaint are admitted by the demurrer, and they must be liberally construed in favor of the pleader. Brewer v. Wynne, 154 N. C., 471. It is also a correct rule of construction, as insurance contracts are prepared by the insurer, that doubtful and ambiguous expressions will be construed in favor of the insured, if this can reasonably be done. Grocery Co. v. Casualty Co., 157 N. C., 116. Applying these principles, it seems to us clear that the claim of the plaintiff is protected by the bond of the defendant. The materials furnished by the plaintiff were ordered by the electric • company, but there is no allegation that the order was accepted; and, on the contrary, it appears that there was no sale until the principal gave its guaranty, and this is a guaranty of payment, which imposes .an absolute and direct liability and not a guaranty of collection. As said by Shepherd, J., in Jenkins v. Wilkinson, 107 N. C., 707, and approved in Voorhees v. Porter, 134 N. C., 600: “There is a plain distinction between a guaranty of payment and a guaranty of collection. 'The former is an absolute promise to pay the debt at maturity, if not paid by the principal debtor, and the guarantee may begin an action against the guarantor. The latter is a promise to pay the debt upon the condition that the guarantee shall diligently prosecute the principal ■ debtor without success.’ Jones v. Ashford, 79 N. C., 173; Baylie’s Sureties and Guarantors, 113.” If, therefore, the liability of the defendant was dependent on the lan'guage quoted and relied on, we would not hesitate to hold that the allegations of the complaint bring the claim of the plaintiff within the class ■ of contracts for materials made directly with the principal, but the obligations of the bond are broader than this as it is expressly stipulated to “satisfy all claims and demands incurred for the same,” meaning the claims and demands incurred in securing labor and material for building the courthouse, and the allegations of the complaint show that the material furnished by the plaintiff was used for this purpose. Affirmed.