
    No. 403
    GLOBE INDEM. CO. v. JACKSON LUMBER CO.
    No. 20329.
    Supreme Court
    On motion to certify.
    Dock. Feb. 17, 1927,
    5 Abs. 121.
    167. BONDS (Surety) — Can materialman sustain action against surety on a bond guaranteeing the payment of material on a private contract and will changes in contract without surety’s knowledge release the surety?
   On Feb. 14, 1924, O. B. Hankie, a contractor, entered into a written contract with Thomas W. Washam, Jr., whereby Hankie agreed to build a house in Jackson, Ohio for $6000. The terms of the contract were peculiar in that there was no specifications and the contract simply provided that, with a few minor changes, the house was to be a duplicate of a house belonging to one Glarence Mc-Noer. The performance of the contract was secured by the bond of the Globe Indemnity Co.

Attorneys — Vorys, Sater, Seymour & Pease, Columbus, for Indemnity Co.; Willis & Jones, Jackson, for Lumber Co.

Upon trial of the cause in the Jackson Common Pleas, the Lumber Company showed they had furnished the lumber and rested. The Indemnity Company then proved twelve changes in the contract and that the cost of the same was materially increased and that they were therefore discharged. The trial resulted in favor of the Lumber Company which judgment was affirmed by the Court of Appeals.

The Indemnity Company contends in the Supreme Court:

1. A materialman cannot sustain an action against a surety on a bond guaranteeing the payment of material on a private contract.

2. Where a surety guarantees the performance of a contract, changes in the contract without the surety’s knowledge or consent release the surety.  