Volume 102 — New Hampshire Reports

1. Where a surety bond refers to and is conditioned on the performance of construction contract between the contractor and owner the terms of the contract and specifications become part of the bond and the instruments are to be read together as a whole. 2. The liability of the indemnity company insuring the faithful performance of the construction contract is coextensive with the obligations of the contractor under the contract and specifications. 3. A guarantee clause in a building contract and specifications that the contractor would make good at his own expense any faults or imperfections that arise due to defects in workmanship rendered the contractor liable for water damage to floors in the house under construction due to faulty workmanship in the installation of a hot water heating system. However, such guarantee did not, under a fair interpretation of the entire contract, render the contractor liable for damages to rugs and underpadding placed in the home by the owners. 4. The contractor was bound by such guarantee even though the heating system was installed by a subcontractor. 5. Upon the failure of the contractor in such case to comply with the terms of the guarantee the surety was rendered liable under its insuring agreement to indemnify the owners against loss or damage directly arising from the failure of the contractor to faithfully perform his contract and the owners were held entitled to maintain actions against both contractor and surety. 6. The fact that an architect for a building contract did not supervise the construction as first contemplated by the specifications did not constitute such a material change in the contract as to affect the liability of the surety for faulty performance by the contractor where the change took place prior to the contractor's execution of the contract. 7. Where an insurer disclaimed any liability on the part of either itself or the contractor under a performance bond for damages claimed by the plaintiff owner, failure of the owner to give notice to the insurer of the contractor's default did not as a matter of law constitute prejudice to the insurer nor relieve it of liability. 8. Where the issue of liability could be separated from the issue of damages and it clearly appeared that the former issue was in no way affected by an error committed in the awarding of damages, the issue of liability was not required to be retried. However, where it was impossible to determine what part of the verdict was improperly awarded for certain damages not chargeable to the<page_number>Page 28</page_number> defendant the verdict was set aside and retrial ordered on the issue of damages. 9. The fact that a substantial period of time elapsed between the date loss was sustained and the time examination was made of the damaged premises by an expert witness to determine the cost of repairs did not render the testimony incompetent as a matter of law.

1. By the terms of the testatrix' will devising the residue of her estate "in equal shares" to her daughter and sister and further providing that "in case of the death of either . . . the share of such decedent [is bequeathed] to the survivor," there was intended a gift in fee to the daughter and sister, with the survivor taking all only in the event that one of them predeceased the testatrix. 2. Where, in such case, neither devisee predeceased the testatrix, each took an undivided one-half interest in fee of the residue of the estate. 3. The common meaning attributed to words of survivorship is that they refer to the death of the devisee in the lifetime of the testatrix.