Hunt Manufacturing Co. v. Hudson

157 S.E. 799, 200 N.C. 541, 1931 N.C. LEXIS 382

• Court: Supreme Court of North Carolina
• Decided: April 1, 1931
• Status: Published

Opinion

Stacy, C. J.

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 tbe county in wbicb tbe building, road, or street is located, and not elsewhere.” Tbis is true, but tbe provisions of tbis statute would seem to be inapplicable to tbe present case.

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

Tbe motion to dismiss tbe action was properly overruled.

Affirmed.