Diamond Match Co. v. Aetna Casualty & Surety Co.

The action was brought to recover on an undertaking executed by defendant to secure the payment by W. R. Zumwalt to plaintiff of the amount due for lumber and building material furnished to said Zumwalt for the construction of a public school building in Corning, Tehama County, and plaintiff recovered judgment for the sum of $6,553.54, with interest thereon from March 11, 1921, the date of the filing of the complaint. (Vi16 appeal is from the judgment and the contentions of appe lant are, first, that the complaint is fatally defective; second, that the findings do not support the judgment; and third, that interest should not have been allowed until the judgment was rendered.

The particular point as to the complaint is that there is no allegation that the under ¡aking was executed by defendant, and it is claimed that, although no demurrer was filed, the question goes to the sufficiency of the statement of a cause of action and can be raised at any time. Appellant relies upon San Francisco S. Co. v. Aetna I. Co., 7 Cal. App. 98 [ 93 Pac. 888 ], and similar decisions. In the first of these it was said: “It is elementar;! that in order to state a cause of action against a surety…