192 Ind. 412 | Ind. | 1922
Appellant is surety on two bonds of a road contractor. Relator brought this action to recover
The complaint is in two paragraphs. The first paragraph asks for $8,978.50 damages for failure to complete the first road, and the second paragraph asks for $7,832.60 damages for failure to complete the second road.
The court found the facts specially and stated conclusions in favor of relator on both paragraphs of complaint, rendering judgment on the first paragraph for $7,582.46, and on the second paragraph for $6,599.12.
Appellant assigns eighteen specifications of error. To sustain these sixty-four propositions are stated, with citation of authority under each. Relator’s brief does not meet these points and gives this court very little assistance.
Appellant first claims the court erred in overruling a motion to make each paragraph of the complaint more specific. The motion addressed to the first paragraph contains six specifications, as follows:
“1. That relator state definitely the number of miles of the Charlestown and Lexington road that have been completed, and the number of miles thereof remaining uncompleted. 2. That relator-state definitely the engineer’s estimate for the portion of the Charlestown and Lexington road completed and the engineer’s estimate for the portion thereof remaining uncompleted. 3. That relator state definitely the contract price for the construction of said Charlestown and Lexington road. 4. That relator state definitely the payments made on the portion of the Charlestown and Lexington road completed, with the date and amount of each payment. 5. That relator state definitely the unexpended balance of the contract price in the hands of relator for said
The motion addressed to the second paragraph is the ' same, except the name of the road.
The allegations in the first paragraph of complaint, relevant to the consideration of the above motion, are in substance: that the contractor began the construction of the road, but abandoned and failed to complete it; that relator notified appellant of the breach, and at the request of an agent of appellant gave to appellant a statement of facts concerning the default; that after said notice, the agent and attorneys for appellant made a personal investigation of the facts and thereby became informed; that it will require the expenditure of $8,-978.50 to complete the road.
The second paragraph of complaint on this subject is the same as the first, except that it alleges that relator has awarded the contract to complete the road for the sum of $5,500; but this allegation is supplemented by the allegation that, becausé of the increased cost of labor and materials, it will require $7,832.60 to complete the second road. The contract price for the first road, as disclosed by the pleading, is $13,235.08. The contract price for the second road is $9,936.56.
-Judgment is reversed, with instructions to sustain appellant’s motion for a new trial, and to sustain its motion to make the paragraphs of complaint more specific in the particulars we have hereinbefore indicated.