
    AMERICAN SURETY CO. OF NEW YORK v. FIDELITY TRUST CO.
    (Circuit Court of Appeals, Third Circuit.
    June 15, 1910.)
    No. 29.
    3. Bonds (§ 62) — Construction—Extent of Liability.
    A bond given by a contractor, conditioned for the faithful performance of the contract, although in terms an absolute obligation to pay a certain sum on default by the principal, is modified by the accompanying conditions, and on breach of the contract by the principal the obligee can recover thereon only the damages proved.
    [Ed. Note. — For other cases, see Bonds, Cent. Dig. §§ 59-72; Dec. Dig. § 62.*]
    2. Contracts (§ 171*) — Construction—Divisibility—Damages Recoverable for 'Breach.
    A sculptor entered into a contract with plaintiff to execute a bronze statue; the contract providing that 10 per cent, of the stipulated price should be paid when the sketch model of the statue was approved, 10 per cent, when the staff model was completed and placed on its pedestal, and other payments when successive steps of the work were completed, and requiring the sculptor to give a bond on the receipt of each payment conditioned for the completion of the contract in accordance with its terms. Two payments were made, and bonds executed pursuant to such requirement, signed by defendant as surety, after which the principal made default. Held, that the contract was an entire one for the completion of the statue, and not a series of independent contracts for the completion of each step of the work, and that the failure to fully perform it was a breach of the condition of each bond given, and entitled plaintiff to recover thereon as substantial damages at least the amount of the payments made for which it had received no consideration.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 754-757; Dec. Dig. § 171.*
    Divisibility of contracts,' see note to Saunders v. Short, 30 C. C. A. 467.]
    
      In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.
    Action by the Fidelity Trust Company, trustee under the will of Richard Smith, deceased, against the American Surety Company of New York. Judgment for plaintiff (175 Fed. 200), and defendant brings error.
    Affirmed.
    Jas. H. Wescott and W. W. Smithers, for plaintiff in error.
    John M. Gest and John G. Johnson, for defendant in error.
    Before BUFFINGTON and LANNING, Circuit Judges, and BRADFORD, District Judge.
    
      
      For otlier oases see same topic & § number in Dee. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BUFFINGTON, Circuit Judge.

This is a writ of error from a judgment entered in the court below in favor of the plaintiff, the Fidelity Trust Company, trustee under the will of Richard Smith, on a verdict rendered in its favor. To the entry of judgment on such verdict, and the denial of its motion for judgment non obstante veredicto, the defendant, the American Surety Company, sued out this writ. The action was upon a surety bond given to the plaintiff by defendant, conditioned for the designing and furnishing by one Bartlett, a sculptor, of a bronze memorial statue of Gen. McClellan. The opinion of the court below is reported in 175 Fed. 200. The facts of the case and the conclusions of law are so fully and ably set forth therein that an opinion by this court would practically be but a repetition.

We therefore adopt the opinion of the lower court, and affirm the judgment.  