B. Nicoll & Co. v. National Surety Co.

The plaintiff had judgment on a surety bond executed by the appellant for and on account of materials furnished the defendant George A. Simpson Company, in the performance of certain work. From this judgment the Surety Company appeals.

The complaint alleges the furnishing of materials and the failure of the Simpson Company to pay therefor. The questions before the court are whether the action, can be maintained, and whether, under the circumstances, the Surety Company is bound by its obligation.

So far as material for our consideration, the complaint and the undertaking set out therein executed by the Surety Company are as follows:

The bond was duly acknowledged by the parties thereto. The claim of the plaintiff was filed within the time as prescribed by the act of 1919, but not within the time prescribed by the act of 1911.

Upon this appeal it is contended by the appellant that the bond executed by it is valid under the terms of the act of 1911, and must be construed as a bond given only under that act, and therefore, that the plaintiff has no standing in court by reason of not having filed its claim within the time limit therein specified. The language used by the appellant…