Verdier v. Title Guaranty & Surety Co.

[644]

THOMAS, J.

This is an action brought by plaintiff against defendant surety company upon an indemnity bond given by the latter to the former to secure the performance by the Aiken Reinforced Concrete Company of a contract for the construction of a three-story brick building. The bond was for $6,746.50. The case was tried by the court without a jury. Judgment went for plaintiff in the sum of three thousand two hundred dollars.

The amended complaint is in two counts, in the first of which appears what purports to be a copy of the indemnifying bond and a copy of the contract between the plaintiff and said Aiken Reinforced Concrete Company, set but

in externa,

and the second realleging these same alleged facts which were set forth and referred to in paragraphs 1 and 2 of the first cause of action. Without quoting said instruments or any portion of the complaint, suffice it to say that the plaintiff prays for judgment against defendant for the sum of six thousand seven hundred dollars, and for her costs.

There was a demurrer to the complaint as amended. This demurrer was both general and special.

Appellant specifies fourteen errors at law occurring dur-. ing the trial, and fifteen specifications of insufficiency of the evidence to support the findings of .the court. In view of the fact that we are of the opinion that the first specification of error—the court’s overruling of the said demurrer— referred to in the transcript and appellant’s opening brief, is well taken, we do not consider that for the present any other point urged need be discussed.

[1]

Nowhere in the amended complaint is it alleged, nor does the record contain any evidence, that the plaintiff herein performed

any,

much less all, of the covenants or conditions required to he performed by her under her contract with the contractor, the Aiken Reinforced Concrete Company. Notwithstanding this fact, the court, in finding VII, found: “That the plaintiff performed all the conditions and terms and agreements on her part to be performed with the Aiken Reinforced Concrete Company under said contract, provided to be by her kept and performed.” The point is not urged by appellant, but we fail to find any evidence in the record to justify the find