dissenting.
The plaintiff’s principal contention is that INA, through its agent, promised payment to plaintiff if plaintiff would continue performing its subcontract with R & W, the prime contractor. Since the appeal is from a judgment in an action at law, tried without a jury, the question is whether there is substantial evidence to support the trial court’s finding that there was no such independent promise. The opinion holds, I think correctly, that there was substantial evidence to support the trial court’s finding on this question.
However, the opinion then holds that as a matter of law INA assumed the responsibility of the principal under the construction contract, and therefore, notwithstanding the trial court’s general finding in favor of INA, INA is liable to pay sums in excess of the payment and performance bond’s stated maximum. Three of the four reasons given in support of that conclusion do not, in my opinion, establish that INA undertook to perforin as the general contractor. Those stated reasons are that R & W assigned its right to receive progress payments from the city to INA, that the city thereafter made payments to INA, and that INA authorized payments to subcontractors and suppliers.1 As a practical matter, any surety under a performance bond who realizes that his principal is *839starting to have trouble, will have progress payments made to it in order that it may monitor the disbursement of funds because it is apparent at that point that some of the surety’s money will have to be used also. These facts, however, do not make the surety a general contractor.
The fourth reason, namely that INA contracted with Tru-Mix to complete the job, is the only one of the four factors which might be said as a matter of law to require a conclusion that INA intended to take over the project to the exclusion of R & W. The Tru-Mix contract indicates that that probably is what INA intended at that time. Whether or not this was intended is immaterial. There is no evidence that INA made a new contract with the city or a contract with R & W by the terms of which either plaintiff was a third-party beneficiary. Further, as pointed out above, the trial judge found against plaintiff on its contention that it changed its position to its detriment or otherwise in reliance upon promises by INA.
We have thus reached a result increasing INA’s contractual liability absent any good reason.
For the foregoing reasons I respectfully dissent.
The payments were in the form of checks payable to R & W and INA.