(concurring and dissenting).
I concur in the affirmation of the judgment as to the contractor Bayshore, but I dissent from the affirmation as to the surety, Fidelity and Deposit Company of Maryland. As to the surety, I would reverse the judgment of the trial court and render judgment that District take nothing as to the surety.
The case, insofar as it relates to the surety, is controlled by the decision in City of Midland v. Waller, 430 S.W.2d 473, 475 (Tex.1968), and a reversal is required.
District’s engineer, Hild, testified that Bayshore had completed the entire contract by December 1, 1971, and on that date he recommended that District accept it as complete and pay the final estimate. On De*903cember 20, 1971, the Board voted to accept the contract as complete and authorized the acceptance of Bayshore’s final estimate of $20,400, and agreed to pay $13,400 then and the balance of $7,000 when certain federal funds were received. Although District did get the funds, it did not pay Bayshore.
On October 5,1973, District sued contractor for breach of the contract and also named surety as a party defendant.
In Midland, supra, Justice Griffin quoted the one-year limitation period provided in Tex.Rev.Civ.Stat.Ann. art. 5160 (1971), and continued:
“The present suit was filed more than one year after the City accepted the pool and paid the contractor. The limitation imposed by Art. 5160 applies, and the trial court correctly rendered a summary judgment that the City take nothing against the surety. The Court of Civil Appeals correctly affirmed that judgment. We affirm the judgment of both courts below in favor of the surety.”
The contract in City of Midland also contained a one-year warranty, just as that in the case at bar. The only difference— which I do not consider to be material — in our case and Midland is that here the District only promised but did not actually pay the final amount due the contractor.
I would sever District’s cause of action against the surety and enter a judgment reversing that of the trial court and rendering judgment in favor of surety; and, I would affirm the judgment against the contractor.