American Terra Cotta & Ceramic Co. v. Bankers Surety Co.

Mr. Justice McGoorty delivered the opinion of the court. The surety bond contained the following provision: “ * * * That any suits at law * * * brought against this bond, to recover any claim hereunder, must be instituted within six months after the first breach of said contract, * * In view of the conclusion reached by this court, it will be only necessary to consider the foregoing limitation in said bond. Plaintiff contends that the printed provisions in said bond, including the limitation provision in question, are inapplicable to the contract entered into by plaintiff and the Sollitt Company. In this regard, plaintiff contends that the written provisions of the bond should prevail over the printed provisions. While it is true that the printed provisions, other than the limitation provision, of said bond are inapplicable to the contract between plaintiff and the Sollitt Company, the limitation provision is not inconsistent therewith. It is a familiar rule of construction that effect must be given to all clauses of a contract, if it can be done. “Although the written provision of a contract should prevail over one inconsistent with it, and which is part of a printed form adopted for general use, yet only so far as it is apparent that the parties intended to modify or disregard the printed stipulations will the latter give way. ’ ’ Ruling Case Law, vol. 6, page 848; Peck v. Scoville Mfg. Co., 43 Ill. App. 360. On October 1, 1908, the surety company by letter made a demand upon the Sollitt Company for payment of the annual premium on the surety bond in question for the ensuing year. It is contended by plaintiff that such demand constituted a waiver of the requirement to commence suit under said bond within six months after the first breach of the contract by the Sollitt Company. There is no evidence, however, that the plaintiff had knowledge of such demand, nor that it was, in any manner, prejudiced thereby. It is also contended by plaintiff that defendant, by its denial, in a letter, of any liability, whatever, on the bond, waived all of its defenses. The defendant was not restricted in its defense because of its general denial of liability on the bond in question, as it does not appear that plaintiff had been misled or influenced to its injury thereby. Weston v. State Mutual Life Assurance Co., 234 Ill. 492, 501. The defendant contends that the Sollitt Company first breached its contract with plaintiff in September, 1906, and plaintiff impliedly admitted on June 15, 1909, that said contract had been breached by the Sollitt Company in a letter sent by it to defendant on that date, in which letter it informed defendant that plaintiff looked to it for performance of its obligation under said bond. In any event, the breach by the Sollitt Company was established by the judgment rendered in favor of the plaintiff and against the Sollitt Company on December 27,1910. The instant case was not commenced within six months thereafter. In the case of Western Tube Co. v. Aetna Indemnity Co., 181 Ill. App. 592, in which a similar limitation clause of the surety bond was in question, the court held that the six months’ limitation clause applied to the whole bond, and any suit on the bond for any breach thereof under that clause was barred unless brought within the six months specified. 1 ‘ The appellees herein had a legal right to limit their liability to any time in their undertaking, and when they did so, the limitation became a part of the contract of indemnity and should be enforced the same as any other contract.” Brown v. Massachusetts Bonding & Insurance Co., 176 Ill. App. 502, 505; Lesher v. United States Fidelity Co., 239 Ill. 502, 511. There is no conflict in the evidence that the Sollitt Company first breached its contract with plaintiff more than six months prior to the commencement of suit in the instant case, and there is nothing in this record that can be construed as a waiver by defendant of the limitation provision which required plaintiff to commence suit upon said bond within six months thereafter. The court did not err in ruling that this suit could not be maintained because it was brought outside of the limitation period provided in the bond, and the trial court was therefore justified in directing a verdict on that ground in favor of defendant. For the reasons stated, the judgment of the Municipal Court will be affirmed. Judgment affirmed.