On appeal from the Supreme Court (Essex Circuit).
For the appellant, Congleton, Stallman & Hoover.
For the respondent, Saul & Joseph E. Cohn.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Supreme Court for the sum of $2,760.48 and costs, upon a verdict found by the trial court sitting in the Essex Circuit without a jury, in favor of the plaintiff and against the defendant.
The case was submitted on an agreed state of facts.
Jerrold H. Meyer (hereinafter designated Meyer), the plaintiff, as owner, entered into an agreement with Philco Construction Company (hereinafter designated Philco Company) for the construction of certain buildings, for which Meyer was to pay Philco Company the sum of $55,000 in certain installments at agreed times as the work progressed; the final installment of $15,000 was not to be paid until the building was fully completed in compliance with the plans and specifications. The contract provided for advances in such payments, but provided always that in each case a certificate of the architect be produced showing the work done according to the specifications, and the final certificate of the
architect was not to be issued "until the contractor has furnished satisfactory evidence that there are no outstanding liens or claims for materials furnished or labor performed on any part of his work."
The contract and specifications were duly filed in the clerk's office of Essex county on June 3d, 1930.
Under the terms of the contract the Philco Company agreed "to obtain and furnish an indemnity bond covering the faithful performance and the completion of this contract in compliance with the plans and specifications."
Accordingly, the Philco Company, as principal, and the appellant, Standard Accident Insurance Company (hereinafter designated as Insurance Company), as surety, entered into a written obligation with Meyer in the amount of $55,000, on the following conditions: "the said Philco Construction Company shall well and faithfully do and perform the things agreed by them to be done and performed according to the terms of said contract, and shall pay all lawful claims of subcontractors, materialmen and laborers, for labor performed and materials furnished in the carrying forward, performing or completing of said contract, we agreeing and assenting that this undertaking shall be for the benefit of any materialman or laborer having a just claim, as well as for the obligee herein."
The contract above mentioned was specifically made a part of this bond, and the two must be read together and construed as a whole. Standard Gas Power Corporation v. New England Casualty Co., 90 N.J.L. 570; ...