Thomason v. Keeney , 4 Ga. App. 721 ( 1908 )

Hill, C. J.

1. A petition in a suit on a contractor’s bond executed as a. part of the contract and for the faithful performance thereof, which sets, forth in full the contract and bond, alleges specific breaches of the contract, resulting in damage to the plaintiff, Igives the items of damages, claimed, and contains allegations that the plaintiff obligee fully complied with all the terms and conditions of the bond, is good, as against, a general demurrer.

2. Where the facts recited in the declaration show performance on the part of the plaintiff, as obligee in a bond, of all its terms and conditions, a. general allegation of performance is unnecessary. 1 Chit. Pl. 535; Gould, PI. § 13.

3. A requirement in a contractor’s bond that the obligee shall give immediate notice to the surety of any default by the contractor is equivalent to a requirement of reasonable notice; and what is reasonable notice is. in each case a question of fact for the jury. Killian v. Georgia R. Co., 97 Ga. 728 (25 S. E. 384) ; Atlantic Compress Co. v. Young, 118 Ga. 868 (45 S. E. 677) ; Fidelity Co. v. Courtney, 186 U. S. 342 (22 Sup. Ct. 833, 46 L. ed. 1193) ; Fidelity Co. v. Robertson, 136 Ala. 379 (34 So. 933) ; 21 Cyc. 1733, 1734, and cit.

4. Where a contractor’s bond provides that “if the principals shall voluntarily abandon said contract, or be lawfully compelled by the obligee to cease operations thereunder, by-reason of their non-performance of any of its terms or conditions, then" the surety shall have the right, in its option, to assume the said contract and to sublet or complete the same,” a reasonable time should, be given to the surety, after the default of the contractor, in which to exercise' such option. What would be a reasonable time is a question to be determined by the jury, under the facts and circumstances of each particular ease.

Judgment affirmed.