Board of County Commissioners v. United States Fidelity & Guaranty Co.

Citations

• 96 Kan. 255
• 150 P. 590
• 1915 Kan. LEXIS 360

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Motion to Make Definite and Certain — When Motion Will Lie. The motion to make definite and certain lies only when the pleading- attacked is so indefinite and uncertain that the nature of the charge or defense is not apparent-. (Civ. Code, § 122.) This does not mean indefinite and uncertain according to the refinements and technicalities of the common-law system of pleading, and a pleading is sufficient as against the motion which fairly apprises the adversary of what the claim or defense is.</p> <p>2. Indemnifying Bond — Failure to Give Notice of Default of Principal —When a Defense to Action on the Bond. The defendant gave a bond to indemnify the plaintiff against loss resulting from breach of a contract to do public work. The bond contained the following provision :</p> <p>“First: That no liability shall attach to the Surety hereunder unless, in the event' of any default on the part of the Principal in the performance of any of the terms, covenants or conditions of the said contract, the Obligee shall promptly and in any event, not later than thirty days after knowledge of such default, deliver to the Surety at its office in the City of Baltimore, written notice thereof, with a statement of the principal facts showing such default and the date thereof; nor unless the said Obligee shall deliver written notice to the Surety at its office aforesaid, and the consent of the Surety thereto obtained, before making to the Principal the final payment provided for under the contract herein referred to.”</p> <p>It is held that the notices provided for were intended to afford the insurer an opportunity to protect itself against loss should it need and should it be able to do so. Failure to give the notices did not affect the liability of the insurer unless loss resulted as a direct consequence, and then only to the extent of the loss, which the defendant was required to plead and prove.</p>