#### EMULSIFIED ASPHALT REFINING COMPANY v. HARRIS & HARRIS CONSTRUCTION COMPANY and MAE E. HARRIS.

(Filed 16 December, 1959.)

Appeal by defendant Mae E. Harris from Carr, J., May Civil- Term, 1959, of Durham.

This -action was instituted by the -plaintiff to recover on a bond executed on 20 December 1956 by Harris & Harris Construction Company as principal and Mae E. Harris m surety in the sum of $4,631.67.

The Emulsified Asphalt Refining Company instituted an action in Brunswick County, North Carolina, -against Harris & Harris Construction Company, et al, alleging to toe due to the Emulsified Asphalt Refining Company the -sum of $9,631.67. After the suit was instituted, Harris & Harris Construction Company gave its check to'.the-plaintiff in the .sum of $5,000 and the -above bond was given to ’secure any amount for which the plaintiff might secure judgment over and above the $5,000, -not to exceed $4,631.67. The plaintiff secured ia-'judgment for the difference between the amount 'Claimed in the complaint -and the $6,000 paid thereon in the sum of $4,631.67. Judgment was duly entered and docketed in the office of the Clerk of the Superior Court of Brunswick County, and also in the judgment' docket in the office of the Clerk of the Superior Court of Durham County, in Judgment Book 26 at page 243.

Execution was duly issued against the defendant Harris & Harris Construction Company and returned unsatisfied. The -present action was instituted in Durham County against these defendants, and during the course of the trial tire defendant Harris & Harris Construction Company announced through its counsel in open court that the corporate defendant did not resist judgment on the bond.

The case was -submitted to the jury against the surety only, and the jury returned a verdict in favor of the plaintiff and against Mae E. Harris in the sum of $4,631.67.

From the judgment entered on the verdict the defendant Mae E. Harris appeals, assigning error.

Eugene C. Brooks, III, E. C. Brooks, Jr., for plaintiff.

Williams & Zimmerman for defendant, appellant.

PeR Cueiam.

We have carefully considered the exceptions and assignments of error of appellant and no prejudicial error that would justify a new trial has been made to appear.

No error.