Western Casualty & Surety Co. v. Brooks

Jones, S. J.

The question presented on this appeal is the right of a surety on two public construction contracts, both performed by the same contractor, to set off losses incurred on one bond with the excess realized on the other. In the bankruptcy proceedings against the contractor, the referee held that the surety had no right of setoff, and therefore should surrender to the trustee the $23,882.26 excess realized on one con*63tract. The District Court affirmed and this appeal followed. We affirm.

The facts in this case, as stipulated by the parties, are briefly as follows: In 1958 the bankrupt,…