Gintjee

This is an appeal from a judgment in favor of plaintiff and from an order denying a new trial in an action upon a building contractor’s bond.

The plaintiff and the defendant Knieling entered into a written contract for the erection by the latter of a building upon.the plaintiff’s lot. The Guardian Casualty and Guar- 8 anty Company, appellant herein, became the surety upon the said contractor’s bond. The first payment of $2,850 under the terms of the contract was to be made when the second floor joists were in place. The contractor proceeded with the erection of the building until November 28, 1913, upon which date the architect having given his certificate that the second floor joists were in place, the plaintiff made said first payment of $2,850 to the contractor as provided in the contract. The contractor immediately thereafter abandoned the contract. On January 14, 1914, the owner filed in the record’s office notice of the contractor’s cessation of labor and abandonment of the contract. On June 2, 1914, the plaintiff commenced this action to recover upon the contractor’s bond.

Two defenses were urged at the trial and are insisted upon on this appeal. These are, first, that…