Surety - Effect of Premature Payments on Surety Bond
![handle is hein.journals/umialr7 and id is 612 raw text is: MIAMI LAW QUARTERLY
of unjust enrichment. It is also interesting to note that In re Taylorcraft
Aviation Corporation is cited as being a case involving a similar
mechanics' lien law, reaching substantially the same conclusion as did
the Florida Supreme Court. There was, however, no mention of United
States v. Security Trust & Savings Bank except as a citation to Section
3672 of the United States Code.
The court, in deciding the principal case, has sought to give the
materialman every conceivable advantage because of its philosophical
approach to the problems of unjust enrichment and the necessity of the
laborer and materialmen being rewarded for their efforts. Nevertheless,
we are forced to decide legal questions, not alone according to the dictates
of our consciences, but also with great regard for the written laws which
have been the cause of the dispute and which should be the guide to its
final resolution.
For this reason it is important to recognize that although the court
used a substantial number of decisions to support its conclusion, all of
these cases were in state and lower federal courts, and every one of them
preceded the decision in Unitd States v. Security Trust & Savings Bank.22
From the logic which the highest court in the land used in that decision,
we may reasonably anticipate that a new trend may have been initiated
to give the federal tax lien somewhat greater strength in similar future
cases.
Murray D. Shear
SURETY-EFFECT OF PREMATURE PAYMENTS ON
SURETY BOND
In a suit for indemnification by the owner (obligee), the contractor's
surety pleaded that the owner's premature payments were a material devia-
tion from the contract, and constituted a discharge. The trial court awarded
summary judgment to the defendant surety. Held, a compensated surety
is discharged only when the owner's deviation from the contract results in
injury to the surety, and the discharge is limited to the extent of such
injury. The fact of the alleged deviation and its extent is a question for the
jury and precludes an award of summary judgment. Gibbs v. Hartford Acci-
dent and Indemnity Co., 62 So.2d 599 (Fla. 1952).
Prior to the advent of the corporate surety late in the nineteenth cen-
tury, sureties enjoyed a favored position in the eyes of the law,' and the
law of suretyship was characterized by the rule of strictissimi juris.2 But the
20. In re Tavlorcraft Aviation Corp., 168 F.2d 808 (6th Cir. 1948).
21. United States v. Security Trust & Savings Bank, 340 U.S. 47 (1950).
22. Ibid.
1. Note, 15 IowA L. REv. 470 (1930).
2. United States v. Free], 92 Fed. 299, (C.C. E.D. N.Y. 1899), aff'd, 99 Fed, 237](ViewImageLocal?handle=hein.journals/umialr7&div=76&collection=&method=preview&ext=.png&size=3)
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Surety - Effect of Premature Payments on Surety Bond
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