Fidelity & Deposit Co. v. Cleveland (City)

Citations

• 35 Ohio C.C. Dec. 402
• 30 Ohio C.A. 321
• 1919 Ohio Misc. LEXIS 110

Syllabus

<p>JUDGMENTS — PLEADING—PRINCIPAL AND SURETY</p> <p>1. Effect of General Demurrer when One Cause of Action well Pleaded.</p> <p>■ It is a fundamental rule of pleading that a general demurrer to any pleading, containing two or more causes of action or defenses, may not be sustained if any one cause of action or defense therein is well pleaded.</p> <p>2. Surety Entitled to Jury Determination of Representations Affecting His Liability on Contract.</p> <p>A surety has the right to have determined primarily by a jury whether representations upon which he claims to have relied to his injury were sufficient to justify an avoidance of the contract of suretyship.</p> <p>3. Modifications in Contract Affecting Surety’s Liability Question for Jury.</p> <p>Provisions which permit of alterations or modifications of a contract, for the purpose of taking care of conditions and situations arising during the course of the work and which could not be anticipated at the time of making the original agreement, are such modifications as do not increase the liability of the surety. Whether other modifications have resulted in increasing the liability of the surety is a question which he is entitled to have determined by a jury, and if found to be material and to have substantially increased such liability, they are fatal to the right of the obligee to recover on the bond.</p> <p>4. Surety not Concluded by Former Judgment were thought Erroneously Dismissed from Action.</p> <p>The conclusiveness of a judgment against a contractor and his surety can not be maintained as to the surety, when it was rendered in an action from which the surety had been dismissed, and therefore at the time the judgment was rendered was not a party nor in privity with anyone who was a party; and this is true notwithstanding the order dismissing the surety was probably erroneously entered.</p>