Hunt Manufacturing Co. v. Hudson

Civil action to recover for materials furnished by plaintiff and used by the defendants in the construction of a number of school buildings.

Plaintiff, a corporation with its principal place of business at Oxford, N.C. brings this action in Granville County, and alleges that in 1929, John W. Hudson, Jr., a resident of Edgecombe County, held two building contracts, one with the "Board of Directors of the East Carolina Training School" for the erection of a building on the premises of said school in Pitt County, N.C. and the other with the school authorities of Worcester County, Maryland, for the erection of a number of buildings at different places in said county; and that the National Surety Company became surety on the bonds given to guarantee the faithful performance of both contracts, including payment for labor, materials, etc.; that plaintiff furnished materials to the contractor for use under both contracts, and has not been paid therefor; that the National Surety Company, upon default of the contractor early in 1930, took over the work on both jobs, in order to minimize its loss, and continued to order materials from the plaintiff, agreeing specifically to pay for all materials already furnished and thereafter to be furnished by the plaintiff for use in completing said contracts.

The National Surety Company entered a special appearance and moved to dismiss the action for that under C. S., 2445, suit on defendant's bond is required to be brought in the county where the building is located.

From a judgment overruling the motion, the National Surety Company appeals. The National Surety Company takes the position that only one action, in the nature of a creditor's bill, can be brought to enforce the surety's liability on a contractor's bond, given to a municipal corporation in connection with public work under C. S., 2445, as amended, and that such action, as provided therein, must "be brought in the county in which the building, road, or street is located, and not elsewhere." This is true, but the provisions of this statute would seem to be inapplicable to the present case.

In the first place, the plaintiff's cause of action is not limited to recovery on the contractor's bond. Another and independent agreement is set out and declared upon. In the second place, C. S., 2445, applies only to bonds given to municipal corporations, and while "The Board of Trustees of the East Carolina Teachers' College" is declared a body corporate by 3 C. S., 5863, such board, we apprehend, is not a municipal corporation within the purview of C. S., 2445. A similar holding was made with respect to the North Carolina State Highway Commission in Trust Co. v. Highway Commission,190 N.C. 680, 130 S.E. 547.

The motion to dismiss the action was properly overruled.

Affirmed.