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Reno E. Wks. v. U. S. F. & G. Co.

December 31, 1919

RENO ELECTRICAL WORKS (A CORPORATION), RESPONDENT, V. UNITED STATES FIDELITY & GUARANTY COMPANY (A CORPORATION), APPELLANT.


Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Harwood & Tippett, for Appellant.

LeRoy F. Pike, for Respondent.

By the Court, Ducker, J.:

This is an action upon a bond executed by defendant surety company, the appellant here, to secure subcon

[43 Nev. 190, Page 193]

tractors, laborers, and materialmen for labor performed and material furnished in the erection, construction, alteration, or repair of a public building or structure.

The second amended complaint alleges substantially that a contract was entered into for the construction of a public building; that thereafter the contractors entered into a contract with plaintiff as subcontractor for the furnishing of material and labor, and for certain construction in connection with said public building; that the plaintiff has performed the conditions of this contract, and there is nothing owing to plaintiff from the contractors on said contract, except the sum of $509.50, still unpaid, though demand has been made of the said contractors, who refuse to pay the same.

The complaint further alleges the completion of said public building, and its acceptance within ninety days of the commencement of this action; that a joint and several bond was executed to the trustees of the public building by appellant, conditioned that the contractors would satisfy all claims and demands incurred in the construction of said building, whereby a cause of action accrued to the benefit of plaintiff against defendant under the laws of this state. It is also alleged that plaintiff has been compelled to employ counsel to prosecute the action, and that the sum of $250 is a reasonable sum to allow plaintiff as counsel fees in the action. A copy of the contract with plaintiff and a copy of said bond are attached to and made a part of the complaint, marked “A” and “B,” respectively.

Defendants demurred to the second amended complaint on the ground that it failed to state a cause of action. It was overruled by the court, and, the defendant having failed to answer within ten days limited by the order, its default was entered and judgment rendered in favor of plaintiff, according to the prayer of the complaint.

Defendant appeals from the judgment, and assigns as error: (1) That judgment is contrary to law; and (2) that the court erred in making its findings of fact and

[43 Nev. 190, Page 194]

conclusions of law and in entering judgment, because the same were made and entered without notice to defendant.

It is claimed that the findings and judgment are not sustained by the pleadings, and are therefore contrary to law. This alleged error lies in the fact that the plaintiff is named in the complaint as the Reno Electrical Works, whereas in the attached copy of the contract the subcontractor is named Reno Electric Works; and also in the fact that the copy of the contract is not signed, and does not purport to be signed, by either Reno Electrical Works or Reno Electric Works.

1. In respect to the first phase of the question, the difference in the names, at the most, is an immaterial variance. The references in the complaint to the contract show that Reno Electrical Works, Reno Electric Works, and subcontractor are the same entity. The endorsement on the copy of the contract “Reno Electrical Works” tends strongly to indicate that the word “Electric” in the body thereof is a clerical error. Appellant could not possibly have been misled in this respect, and the court was authorized, not only by the general rule of law concerning immaterial variances, but by the liberal statutory rule, in finding the fact in conformity with the pleadings. ...


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