
    POWELL PAVING COMPANY INCORPORATED v. CITY COUNCIL OF SWAINSBORO, for use, etc.
    No. 7149.
    February 11, 1930.
    
      A. S. Bradley, for plaintiff in error.
    
      Alfred Herrington Jr., and George Kirkland Jr., contra.
   Per Curiam.

This was an action in equity brought in the name

of the City Council of the City of Swainsboro under a bond given by Powell Paving Company Incorporated, of North Carolina, conditioned for the payment of the claims of all persons who furnish material and supplies used in the construction of certain paving. The case was submitted to the judge without the intervention of a jury, on the pleadings and an agreed statement of facts. The judge rendered judgment for the plaintiff. The demurrers were considered, but there was no separate ruling as to them. In addition to the general grounds, the motion for a new trial complains (1) that the court erred in finding, that, “as the court understands it, the defendant, to avoid the necessity of amendment on the part of the plaintiff, abandons the special grounds of demurrer,” first, because there was no stipulation that the defendant abandoned its grounds of demurrer, and the demurrer particularly raised the question that there was not set out in the petition or attached to it a copy of the contract between the City Council of Swainsboro and the Powell Paving Company, and that this was necessary to a determination of the question whether the plaintiff was entitled to a reformation of the bond; and (2) that the demurrer specifically made the question that the plaintiff was not entitled to reformation of the contract under tlie allegations of the petition.

Under the pleadings and the agreed statement of facts the court did not err in rendering judgment for the plaintiff. The grounds for a new trial show no error.

Judgment affirmed.

All the Justices concur.  