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MILLER LUMBER INDUS., INC. v. BROWN

No. 1643, September Term, 1979.

46 Md. App. 399 (1980)

416 A.2d 302

MILLER LUMBER INDUSTRIES, INC. v. MARVIN W. BROWN ET AL.

Court of Special Appeals of Maryland.

Decided July 15, 1980.

Attorney(s) appearing for the Case

Leonard M. Murphy, with whom was John C. Hancock on the brief, for appellant.

Mark C. Treanor for appellee Maryland National Bank. Walter W. Sawyer and Myerberg, Sawyer & Rue on the brief for appellees Browns.

The cause was argued before GILBERT, C.J., and LOWE, J., and JACOB S. LEVIN, Associate Judge of the Seventh Judicial Circuit, specially assigned.

LOWE, J., delivered the opinion of the Court.

This appeal is concerned with a performance bond securing to its owners and their mortgagee the cost of completing the construction of a home. Troubling in our deliberation is the fact that the defaulting builder has not been found in default by judgment or opinion; however, since the issue was not raised on appeal, nor raised as a defense by the surety, 72 C.J.S. Principal and Surety § 255 (1951), we will...

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