#### PITTSBURGH PLATE GLASS COMPANY, Inc., v. HOTEL CORPORATION et al.

(Filed 30 December, 1929.)

Insurance K b — Retention of premium until issue' of fraud can be determined is not waiver of right to avoid contract for the fraud.

The surety on the bond of a contractor for the erection of a building does not necessarily waive his right to avoid the contract for fraud by retaining the premium paid to it during the litigation until the alleged fraudulent procurement of the bond can be determined.

Appeal by plaintiff from Grady, J., at May Term, 1929, of New HaNOVER.

Civil action to recover for materials furnisbed by plaintiff and used by the contractor in building the Cape Fear Hotel in the city of Wilmington.

Upon denial of liability by tbe bonding company, and issues joined, the jury returned the following verdict:

"1. Was the execution of the bond of 2 November, 1923, on the part of the Fidelity and Deposit Company of Maryland, procured by false and fraudulent representations, or the fraudulent concealment of facts on the part of Walter Clark, as alleged in the answer of said Surety Company? Answer: Yes.

“2. If so, did Miller & Company have knowledge of, or participate in said fraudulent representations or concealment of facts as alleged in said answer? Answer: Yes.

“3. If there were such fraudulent representations or concealment of facts as alleged, did the Fidelity and Deposit Company of Maryland, after the discovery thereof, retain the premium, and hold and claim the benefit of the indemnity obligation of Broadfoot, as alleged by the complaint ? Answer: Yes, by the court.

“4. If there were such fraudulent representations or concealment of facts, as alleged by the defendant, Surety Company, has said Surety Company, by its acts and conduct waived the same and ratified the contract or suretyship as alleged by the plaintiff? Answer: No, by the court.

“5. What amount is the plaintiff entitled to recover of the defendant, Fidelity and Deposit Company ? Answer: .”

From a judgment on the verdict, relieving the Fidelity and Deposit Company of Maryland from liability on its bond, but requiring a return of the premium paid thereon, the plaintiff appeals, assigning errors.

Bryan & Campbell, O. D. Hogúe a\nd Mcursden Bellamy for plaintiff.

Isaac 0. Wright and Bounirm & Carr for defendant, Deposit Company.

*167Per Curiam.

Tbis action was instituted. 24 August, 1925. It bas bad many bearings in tbe Superior Court, and tbis is tbe third appeal bere. Former appeals reported in 193 N. C., 769, and 197 N. C., 10.

A careful perusal of tbe record leaves us witb tbe impression tbat the case bas been tried substantially in accord witb tbe principles of law applicable, and tbat tbe verdict and judgment should be upheld.

Tbe trial court correctly ruled tbat in an action to recover on tbe contract it is not necessarily a waiver of tbe right of avoidance for a surety company, while defending said action, to retain tbe premium paid on tbe policy until its alleged fraudulent procurement can be determined. 14 R. C. L., 1193.

No error.