Judges: DAVIS, J. —
Attorneys: Van Fleet, Collins Miller, for Plaintiff in Error;
Bussey, Mann Barton, for Defendants in Error.
Filed: Apr. 13, 1932
Latest Update: Mar. 02, 2020
Summary: It seems to me that the declaration in this case was sufficient to withstand a general demurrer such as was sustained by the trial judge. The declaration sets out the terms of a building contract between plaintiff and McIntosh, the contractor. The contractor was to construct a building for plaintiff under the contract, plans and specifications, and the United States Fidelity and Guaranty Company became surety on a bond which was given by the contractor to save harmless the plaintiff in the event
Summary: It seems to me that the declaration in this case was sufficient to withstand a general demurrer such as was sustained by the trial judge. The declaration sets out the terms of a building contract between plaintiff and McIntosh, the contractor. The contractor was to construct a building for plaintiff under the contract, plans and specifications, and the United States Fidelity and Guaranty Company became surety on a bond which was given by the contractor to save harmless the plaintiff in the event ..
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Plaintiff in error who was plaintiff below, sued defendants in error who were defendants below, in a common law action, for breach of contract to construct a dwelling. A demurrer to the declaration was sustained and plaintiff, declining to plead further, the cause was dismissed as to defendant, United States Fidelity and Guaranty Company. This writ of error was taken to that judgment.
The contract sued on, was one of suretyship to save harmless the plaintiff in the event the defendant, McIntosh, failed to construct the dwelling in accordance with plans and specifications attached to and made part of the contract sued on. The dwelling was completed,
accepted and paid for by the plaintiff. Alleged defects in construction later developed on which the instant action is predicated.
Even if plaintiff is entitled to recover, the declaration does not sufficiently negative the fact that the dwelling was not constructed in accordance with the plans and specifications. The demurrer was therefore properly sustained.
