
    No. 861
    TOLEDO (City) v. DETROIT FID. & SUR. CO.
    No. 19995.
    Supreme Court
    On motion to certify.
    Dock July 20, 1926;
    4 Abs. 510.
    1139. SURETY BONDS — Where a surety company has executed a bond for the performance of a contract by a contractor for public work and upon default of the contractor the city completes the work and thereafter funds remain in its possession which were not expended for said work, may the surety company recover this amount, after paying the amount called for by the band?
    Attorneys — Smith, Baker, Effler & Eastman for City; Denman & Wall for Company; all of Toledo.
   This action was brought originally in the Lucas Common Pleas by Detroit Fidelity & Surety Company against the city of Toledo in an effort to recover about $4300, in the possession of the city which amount remained after the construction of a water line completed by the city after the default of the contractor and the payment of the surety bond. The balance of the amount unexpended was paid to the contractor’s assignee.

The judgment of the Common Pleas in directing a verdict for the Company was affirmed by the Court of Appeals.

The city in the Supreme Court contends:

That the case 114 OS. 323 does not apply in the present action because in the instant case the city completed the work and in the case cited the contract was complied with by the surety company.  