Bacigalupi

Plaintiffs entered into a contract with the Phoenix Building and- Construction Company (which shall hereinafter be designated as the building company), for the construction of a building for the sum of $14,000. The Title Guaranty and Surety Company gave a bond to plaintiffs, in the sum of $3,500, as sureties for the performance of the contract by the building company. The building company did not complete said building or perform its contract, but abandoned the same. The plaintiffs brought this action against the building company and the surety company to recover damages in the sum of $3,500 for breach of the contract. The building company defaulted, but the surety company defended. The jury returned a verdict for plaintiffs for the sum of $3,300, for which judgment was entered.

1. Appellant’s first contention is that the complaint fails to state a cause of action, and that for that reason the court erred in overruling its demurrer to the complaint.

The point of the attack made by the demurrer, as indicated in appellant’s opening brief, is the alleged insufficiency of the allegation as to any damage caused plaintiffs by the failure of the building company to perform its…