Oliver v. Ætna Indemnity Co.

Fish, C. J. (After stating the facts.) The fact that the first and last paragraphs of the petition, which set forth no facts calling for an answer, were numbered, was not cause for demurrer. The suit was for the recovery of the annual premium or charge made by the plaintiff for acting as surety for Jay on his bond to Early County, and the petition alleged that the defendants were “due” the plaintiff the sum of two hundred dollars as such premium or charge, under the agreement entered into between plaintiff and defendants, a copy of which was attached as an exhibit to the petition, “whereby [defendants] became indebted to petitioner in the sum of said two hundred dollars and lawful interest thereon from the time said sum became due as aforesaid.” The action not being for any loss or damage incurred by plaintiff by reason of its suretyship on Jay’s bond, but being predicated upon the contract of defendants to pay the plaintiff the premium above adverted to, it was not necessary to set forth the bond, or to at822 tacli a copy thereof as an exhibit to the petition. Under the terms of the contract sued on, the defendants agreed and bound themselves, “jointly and severally,” that Jay should pay the plaintiff, as the premium or charge for plaintiff’s becoming surety on his bond, the sum of two hundred dollars annually until plaintiff should be discharged or released from all liability on such bond. As the petition alleged that defendants were “due” plaintiff such sum as the premium to be paid, under the terms of the contract, on December 8, 1905, and that the defendants had become “indebted” to plaintiff for such premium with interest thereon from the time that it became “due,” such allegations were sufficient, as against a general demurrer, to set forth a liability on the part of defendants for such premium, without an allegation that plaintiff had not been discharged or released from liability as surety on the bond of Jay. No special demurrer went to this point. We are quite clear that the petition set forth a cause of action and was not subject to any of the demurrers. Judgment affirmed. All the Justices concur.