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eBook details

• Title: State v. American Surety Co. of New York
• Author : Supreme Court of Montana
• Release Date : January 17, 1927
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 69 KB

Description

Sureties ? State Timber Sale Contracts ? Surety Company Bonds ? Nature of Undertakings ? Effect of Failure of State to Enforce Payment by Buyer ? Pleading and Practice ? Striking Pleadings as Sham ? Motion to Strike in Effect Demurrer. Pleading and Practice ? Striking Pleading as Sham ? When Proper. 1. Where, after a general demurrer to certain affirmative defenses in an action on a surety companys bond had been sustained as not presenting a defense, defendant in an amended answer repleaded them, the court, under section 9166, Revised Codes of 1921, properly ordered them stricken as sham. - Page 505 Same ? Motion to Strike Pleading in Effect a Demurrer. 2. A motion to strike a portion of a pleading is in effect a demurrer to the sufficiency of the portion attacked. Surety Company Bonds ? Nature of Undertakings. 3. Surety company bonds are regarded as contracts of insurance and are construed most strongly against the surety. Same ? State Timber Sales ? What not an Unauthorized Modification of Contract of Surety by State. 4. The surety on a bond to insure payment for timber cut on state lands is not released from liability for failure of the state to enforce payment against the buyer or to avail itself of other safeguards authorized by the contract between it and him, on the theory that thereby such contract was materially modified without the suretys knowledge or consent, since those provisions were inserted in the contract as further protection to the state and not for the benefit of the surety and the contract did not form any part of the suretys undertaking. Same ? Contract for Sale of State Timber and Contract of Surety Separate Engagements ? Rule of Construction. 5. The rule that more than one contract relating to the same subject matter, between the same parties, and made as parts of substantially one transaction, must be construed together (sec. 7533, Rev. Codes 1921) has no application in an action on a surety bond conditioned to pay the amount found to be due under the terms of a contract for the sale of state timber if the buyer failed to pay, the parties not being the same and the obligations thereunder being entirely separate and distinct. Same ? State Timber Contracts ? Contract Securing Payment One of Surety, not Guaranty. 6. The contract of a surety company under which it binds itself, agreeably to the statute upon the subject, to pay the state the moneys found due it under a timber sale contract where the buyer fails to pay is one of surety, and not one of guaranty, and by its execution the company becomes responsible to the state for the amount due equally with its principal.

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