Dunne Investment Co. v. Empire State Surety Co.

This is an action to recover the sum of $23,036.59 on a surety bond executed by the defendant, Empire State Surety Company, to insure the faithful performance of the terms of a building contract made and entered into between the plaintiff, as owner, and the defendants, Condon and MeGlynn, as contractors, on the twenty-first day of October, 1908, at the city of San Francisco.

The Surety Company answered the complaint by denials and certain affirmative defenses, the latter involving the charge that the terms of the building contract were varied from in material respects without the knowledge or assent of the said defendant.

The other defendants defaulted.

A trial of the issues was had before a jury and a verdict awarding the plaintiff the sum of $12,219.50 returned. Judg ment was thereupon entered for the plaintiff in said amount.

This appeal is prosecuted by the defendant, Surety Company, from said judgment and the order denying it a new trial.

The building contract, which is a lengthy document, was entered into and executed on the twenty-first day of September, 1908, and under its terms the defendants, Condon and MeGlynn, building contractors and doing business as such under…