Miller Lumber Industries, Inc. v. Brown

This appeal is concerned with a performance bond securing to its owners and their mortgagee the cost of completing the construction of a home. Troubling in our deliberation is the fact that the defaulting builder has not been found in default by judgment or opinion; however, since the issue was not raised on appeal, nor raised as a defense by the surety, 72 C.J.S. Principal and Surety § 255 (1951), we will proceed on the presupposition that the building contract was breached. The evidence was certainly sufficient to so indicate.

On August 20, 1975, Marvin and Billie Brown contracted with White…