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.