Friday v. Smith

Citations

• 195 F. 742
• 115 C.C.A. 542
• 1912 U.S. App. LEXIS 1429

Syllabus

<p>Pleading (§ 129*)—Traverse under Oath— Sufficiency.</p> <p>In an action by the receiver of a railroad company against a construction contractor’s surety, a statement that the contractor failed to complete the work, that the receiver took it over under the contract and completed it at an expense in excess of the contract price, that the receiver did work to the amount of $55,657.80 on the basis of prices under the contract, and received from certain sources $2,444.57, making an aggregate credit of $58,102.37, and paid out for labor, materials, etc., $84,618.76, leaving an excess of $26,516.39, due from the contractor to the receiver, etc., was sufficiently traversed by an affidavit of defense denying that the contractor was in default and surrendered the work, and stating that the receiver wrongfully took possession thereof, and that any work done by the receiver was outside the contract, requiring proof of the facts averred in the statement, under a rule of the trial court providing that material averments of plaintiff’s statement, not directly traversed by defendant’s affidavit, shall be taken as admitted.</p> <p>[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 129.*]</p>