On appeal from the Supreme Court.
For the appellant, Collins & Corbin (Edward A. Markley and James B. Emory, of counsel).
For the respondent, Insley, Vreeland & Decker (A. Leonard Roberts, of counsel).
The opinion of the court was delivered by
TRENCHARD, J. This action was brought upon a bond given by George H. Evans, Incorporated, as principal, and the defendant below as surety, to the New Jersey state board of education in accordance with chapter 75 of the laws of 1918, page 203. The plaintiff below furnished material to George H. Evans, Incorporated, the general contractor, and because of the failure of the latter to pay for the same, this action was brought against the defendant as surety on the bond.
The plaintiff moved to strike out the defendant's answer as sham. Judge Ackerson granted the motion. We think that was right and no reason is presented for disturbing the consequent judgment.
In the court below the defendant's counsel expressly agreed that, so far as that motion was concerned, the answer should stand or fall upon the determination of the question whether or not the plaintiff served the defendant, as surety on the bond, within eighty (80) days of the date of the acceptance of the school building improvement in question, with a statement of the
amount due to the plaintiff, and the defendant relies upon a resolution adopted by the New Jersey state board of education on July 11th, 1931, as an acceptance.
On this appeal the defendant-appellant, it seems, concedes (as it did in the court below) that, if such resolution of July 11th, 1931, was not an acceptance within the meaning of the statute, then the plaintiff's statement of its claim was filed with the defendant within time.
That resolution declared with respect to the contract for the improvement in question that it had been completed and accepted with the exception of the meeting room and a few other specified items, and retained $3,500 until the meeting room and other items had been completed and finished.
We think that such resolution did not constitute an acceptance such as is ...