Delaware gazette and state journal., 1896-01-16
AMERICAN SURETY co. VS.. RUTH.
A Decision Under which the Case Will he
Tried In the Superior Court.

Tried In the Superior Court.
Argument was heard in the superior
court Monday night in the case of the
American Surety Go. vs. William A.
Ruth. The plaintiff was represented
by Hugh G. Browne and II. II. Ward
and the defendant by William s. Hilles.
Earlier this term Mr. Hilles had secured
n rule to show cause why judgment
should not bo opened and the parties
let into trial. The argument was as
to whether that rule should be made
absolute.
Among those In the courtroom were
James Z. Winchester, resident vice
president Of the American Surety Co. !,
and Lewis 9. Vandegrift and j. Ernest
Smith, who are of attorneys for the
John Mulvena estate, which, while not
a party to the case, is deeply interested
in it. John Mulyena was tho contractor
for the Washington School, and Ruth
was a sub contractor. In order 10
guarantee the fulfilment of his sub
contract, which was for about SIS, 900,
kuth made an arrangement with the
American Surety Co. to become his
surety. In order to protect the com
pany Ruth gave judgment bond. He
now holds that his obligation has been
discharged and wishes the bond satis-
fled. The company. however. do not
desire the bond satisfied until they are
sure that there are no claims against
Ruth. for should the bond be satisfied,
and it afterwards be shown that Ruth
had not completed his contract with
Mulyena, the company might be held
liable and would be without redress.
From the answer of the company,
read by Mr.. Browne, it appeared that
the bond WAS made out June 5th
1893, on which Ruth was TO pay pre-
mium of s75 per annum. Ruth gave
one judgment bond of So, GOO, and later
gave a judgment bond Of s5, 500 in lieu
thereof.
Before his death, John Mulvena
claimed that Ruth's contract was not
fully performed, and his legal represen-
tative claims 30 still. The answer also
alleges that Ruth had failed to pay tho
premium of s76 that was due June 18th,
1894, and June 18th, 1895. Neither
Of the plaintiff from liability on the
bond. According TO Mulvena's legal
representative the plaintiff is liable to
upwards of 81, 600. The plaintiff claims
that to satisfy the judgment would
This was signed and sworn TO by Mr..
Winchester, the resident vice president.
When the papers had been passed
up to the court Chief Justice Lore re.
marked that question of fact had
been raised and asked the attorneys il
they wished the court to pass upon
that.
Mr.. Ward thought that the way out
of the muddle was to take the matter
into Chancery, where all the persont
interested could be present, whereas in
the superior court the Mulyena estate
is not a party. The court, however,
held that the law court was adequate.
Mr.. Hilles said that it was ques
tion whether Ruth had discharged his
Judgment. His land is tied up by il
and he wants it satisfied.
Chief justices Lore said that il Ruth
shows that he has satisfied every con
dition of tho bond it should be dis
charged. Ruth must bring in Mulveni
and show that he has no liability or h'
cannot get his discharge. The burder
is upon Ruth to show that the com
pany is absolutely clear on this con
tract.
Mr.. Vandegrift arose and stated tt
tho court that he was one of counse
for Muvena. Mr. Hilles declared tha
Mulvena was not in this case.
Tho court made the rule absolute ant
ordered that AN issue be framed ant
tried by jury. In another case hetweel
the same parties tho court made abso
lutte a rule by agreement of plaintiff
counsel 10 vacate judgment which
had been made by Ruth's wife.
Tho Surety company's position is
most peculiar one. 1t is asked upol
the part Of Ruth to release indemnit,
on the ground that the contract ha
been completed, but the estate of Johl
Mulvena claims that the contract ha
not been completed. The decision o
the court puts the parties in the posi-
tion of proving chat tho contract is o
is not completed.