Supreme Court of South Carolina, 1909

Greenville-Carolina Power Co. v. United States Fidelity & Guaranty Co.

Supreme Court of South Carolina · Decided June 18, 1909 · Jones

64 S.E. 518; 83 S.C. 90; 1909 S.C. LEXIS 98 (South Eastern Reporter)

Counsel

Mr. Jos. A. McCullough , for appellant, cites: It was duty of plaintiff to inform defendant of conditions unfavorable existing at execution of bond: 14 Ency., 72, 79; 50 S.C. 402 ; 27 Ency., 443, 460; 63 Am. St. R., 327; 58 Am. Dec., 769; 20 Cyc., 1419; 6 Current L., 1597; 21 L.R.A., 411; 4 McC., 171; 1 Black, 465; 96 N.W., 918; 71 N.W., 710; 62 Am. St. R., 921; 18 S.C. 119 ; 63 Am. St. R., 336; 61 S.C. 190 ; 69 N.E., 693. As to the construction of the contract in behalf of surety: 12 Cyc., 1425; 89 Fed., 925; 131 Fed., 209; 7 Current L., 481; 145 Fed.R., 148; 92 Fed.R., 550; 96 S.W. 745; 52 N.W., 1110; 28 S.W., 439; 67 N.W., 913; 53 L.R.A., 613; 57 Fed.R., 179; 152 Fed., 956; 31 N.W., 862. Messrs. Haynesworth, Patterson Blythe , contra, cite: As to misrepresentation of physical conditions: 103 Fed., 609; 44 N.W., 1. Duty of one receiving an obligation to make disclosure to the surety: 14 L.R.A. (N.S.), 377; 92 U.S. 293 ; 100 N.W., 629; 18 S.C. 116 . Payment for materials delivered is not advance payment: 13 C.C.A., 572; 42 N.F., 670; 205 U.S. 105 . Construction of contracts of compensated sureties: 170 U.S. 133 ; 98 Am. St. R., 838; 67 Pac., 989; 57 S.C. 466 : 1 Cool. Briefs on Ins. L., 634; Frost Law of Guaranty Ins., 15, 16, 27: 19 C.C. A., 281; 26 C.C.A., 146; 11 C.C.A., 96; 19 C.C.A., 264; 17 C.C.A., 56; 34 C.C.A., 164; 66 N.W., 528; 5 L.R.A., 270; 70 N.E., 347; 21 C.C.A., 5; 71 C.C.A., 655; 114 U.S. 549 ; 10 S.C. 122 ; 106 U.S. 388 ; 72 N.E., 347 ; 86 Ill., 78 ; 68 S.W. 974; 65 L.R.A., 962. This opinion was filed May 8, 1909, but remittitur held up on petition for rehearing until

Addendum

After careful consideration the Court is unable to discover that any material question of law or fact has been overlooked or disregarded.

It is, therefore, ordered that the petition herein be dismissed and the order staying remittitur heretofore granted be revoked. *Page 103

Opinion of the Court

June 18, 1909. The opinion of the Court was delivered by The plaintiff sued defendant upon a $25,000 bond, guaranteeing the faithful performance of a contract by John F. Grady Son for the construction of a dam and power house for plaintiff on Saluda River, in Greenville county, S.C.

The issues were by consent submitted to Judge Hydrick, without a jury, and judgment was rendered against defendant for $25,000.

This being a case at law, it is conceded that the Supreme Court has no jurisdiction to review the findings of fact by the Circuit Court, where there is any testimony whatever in support of the same.

After careful consideration, we conclude that the findings of fact by Judge Hydrick, whose decree is herewith reported, have support in the testimony, and that upon the facts so found he properly adjudged the defendant was liable upon the bond.

The judgment of the Circuit Court is affirmed.

June 18, 1909.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.