UNITED STATES ex rel. W. W. MONTAGUE & CO. v. AXMAN et al.

UNITED STATES ex rel. W. W. MONTAGUE & CO. v. AXMAN et al. (Circuit Court, N. D. California. September 6, 1906.) No. 13,658. Principal and Surety — United States — Bond of Contractor for Government Work — Release of Surety’. The giving of a note by a contractor for government work for thearuount of an account rendered for materials furnished does not release the surety on Ms bond, given pursuant to Act Aug. 13, 1894, e. 280, § 1, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523], from liability for such, material an action on the bond being based on the account, and not on the note. [Ed. Note. — For eases in point, see Cent. Dig. vol. 40, Principal and. Surety, §§ 219-222.] J. F. Cowdery and Robert Harrison, for plaintiff. Charles A. Shurtleff and Lawler, Allen & Van Dyke, for defendants. [MAJORITY — MORROW, Circuit Judge] MORROW, Circuit Judge (orally). This action was to recover $5,470.98. This suit was commenced October 1, 1904. The same defense is made to this action, with respect to jurisdiction and the liability of the Coast Contracting Company, that was made in No. 13,441, and the views I entertain in that case dispose of its defenses in this- case. But this'case differs from the other case in this respect: that the material was supplied commencing February 6, 1900, and the last debit is October 24, 1903; .that on the last-named date an account stated was presented to the Contracting Company and has fixed, the liability of the defendant Axman ,at the sum of $5,470.98. In this case a promissory note was' given by Axman and the Coast Contracting Company on October 24, 1903, for the amount of the account stated, and it is claimed by the defendant that this note has released the sureties on the bond; but, as I have stated in the other case, this suit is brought upon the account, and not upon any other obligation. It is not brought upon the promissory note in this case, and the giving and receiving of the note did not release the sureties on the bond. Judgment will therefore be entered in this case for $5,470.98.