
    NECESSARY ALLEGATIONS IN A SUIT ON A CONTRACT OF INDEMNITY.
    Common Pleas Court of Hamilton County.
    The City & Suburban Bell Telephone Company v. The Great Western Marble Works.
    Decided, March, 1911.
    
      Pleading — All Averments Must be Made which are Pertinent to the Issue — Conditions Precedent and Conditions Subsequent.
    
    In an action on a contract of indemnity which stipulates how notice of default shall be brought home to the defendant surety, averments should be made which will inform the defendant as to when the plaintiff first became aware of the liability of the defendant through the default of his principal and also the date when this information was communicated to the defendant by the plaintiff.
    
      David H. Scott, for plaintiff.
    
      Peck, Shaffer & Peck, contra.
   Woodmansee, J.

The motion of defendant to require plaintiff to make its petition more definite and certain is granted.

When a petition filed on a contract alleges that all the conditions of the contract incumbent upon the plaintiff have been complied with, it meets the requirement of the code with reference to conditions precedent, but does not apply to conditions subsequent, which often form the basis for plaintiff’s right of recovery.

The court is of the opinion that it is not exacting too much of a pleader to require him to set out any allegation pertinent to the issue that would really decide a whole case upon demurrer, rather than the point be raised at the hearing of the ease when it comes up for trial. The speedy and orderly administration of justice would suggest the former procedure rather than the latter. Otherwise the pleader could withhold the allegation of a fact that would be fatal to his cause of action, and which he must know would be disclosed at the hearing; besides, if the particular fact were called to the attention of his client his affidavit to the pleading would indicate that the point in question was brought home to him, whereas, the general allegation in a pleading that all the' conditions have been complied with does not mean much to the ordinary litigant who swears to the pleading.

A copy of the contract sued on in this action is attached to the petition and made a part of it. It is a contract of indemnity and it stipulates how a notice shall be brought home to the defendant to make it liable on .the contract, and while the petition alleges that due notice was given to the defendant under the contract, the defendant is -entitled to know the date when plaintiff first had knowledge of the fact that the defendant was responsible to the plaintiff because of the alleged default of defendant’s principal and is also entitled to know the date when this information was communicated to the defendant.

Motion granted.  