This is a suit against a contractor and his surety for the price of certain building materials purchased by the contractor and alleged to have been used in the construction of a residence under a contract for the performance of which the surety had issued its bond.
The contractor, Harris, made no defense and has not appealed from the judgment against him. The surety, Globe Indemnity Company of New York, in its answer, defended upon the ground that the plaintiff had failed to record its lien against the proper party within forty-five days of the acceptance of the work and that, therefore, the surety was released. This defense ap*508pears to have been abandoned, as it well might be, for see Panama Sash and Door Company vs. Deliste, 8592 Orl. App., and in this Court it is urged that plaintiff has failed to make out his case with sufficient certainty, which is the sole issue in the case.
Prom the judgment below condemning it in solido with its co-defendant, the Indemnity Company has appealed. Only one witness, Mr. Blottman, for plaintiff,. testified. He declares that he sold the material to Harris, the contractor, for use in the construction of the house, which was being erected under the building contract upon which the defendant Indemnity Company was surety, and that he had not been paid therefor. He was asked whether he had seen the contract between the owner and Harris and answered in the negative. Counsel claims that there is not sufficient proof that the materials sold by plaintiff and used by Harris, the contractor, were used in accordance with the contract upon which it was surety. No such issue is tendered in the answer and defendant has offered no testimony whatever. On the contrary the petition in which there appears an allegation to this effect is not denied in this regard.
We think the case is clearly with the plaintiff and that the judgment appealed from should be affirmed and it is so ordered.