Plaintiff in error who was plaintiff below, sued defendants in error who were defendants below, in a common law action, for breach of contract to construct a dwelling. A demurrer to the declaration was sustained and plaintiff, declining to plead further, the cause was dismissed as to defendant, United States Fidelity and Guaranty Company. This writ of error was taken to that judgment.
The contract sued on, was one of suretyship to save harmless the plaintiff in the event the defendant, McIntosh, failed to construct the dwelling in accordance with plans and specifications attached to and made part of the contract sued on. The dwelling was completed, *Page 720 accepted and paid for by the plaintiff. Alleged defects in construction later developed on which the instant action is predicated.
Even if plaintiff is entitled to recover, the declaration does not sufficiently negative the fact that the dwelling was not constructed in accordance with the plans and specifications. The demurrer was therefore properly sustained.