Ceremony v. Drummond

[447]

JAMES, J.

The defendant Casualty Company appeals from a judgment entered in this action favorable to the plaintiff.

A contract having been made between the plaintiff as owner and defendant Drummond as contractor, the appellant Casualty Company became surety for the contractor that the contract would be faithfully performed. The general obligation of the surety was expressed in that clause of the undertaking which guaranteed that the contractor would pay in full the claims of all persons performing labor upon or furnishing materials to be used in the work. Plaintiff in his complaint alleged that the contractor neglected and failed to comply with the terms of his contract and failed to pay for labor and materials in excess of the contract price (specifying names of claimants and amounts), which labor and materials it was further alleged “were furnished to be used and were used in the construction of said building.” Allegations followed to the effect that the contractor’s debtors mentioned had filed claims of lien against the property of the plaintiff and were threatening to foreclose the same. Two objections are made as against the judgment: First, that the complaint did not in its allegations show that the claims made against the property of the plaintiff on behalf of Drummond’s debtors were valid or enforceable; second, that no recovery could be had on the bond given by appellant until payment of the claims had actually been made by the plaintiff. It may be here stated that in the course of the trial a supplemental complaint was allowed to be filed which showed that the plaintiff had satisfied the demands of the lien claimants. Of course, it is clear that if the complaint as originally filed was not sufficient, in that it failed to show that at the date of the commencement of the suit plaintiff had actually paid out the money, reimbursement of which was sought in the action, it could not be helped out by supplemental complaint filed thereafter. So, then, the case is to be viewed as though no supplemental complaint had been filed. The condition of the bond of appellant was that the contractor would pay all claims for labor and material. It is alleged in the complaint that this was not done, but that Certain enumerated claims were made for materials alleged to have been furnished to be used, and actually used, in the construction of the building. .We think the allegations of