ON REHEARING.
BELL, J.This case is before us upon a rehearing granted under the contentions of the applicant for rehearing, the Globe Indemnity Company, that this court has erred in applying to the instant case the rule of pleading that material allegations of fact contained in .the petition and not denied in the answer are taken as true.
It is .contended that however sound be this rulé, it is inapplicable to the present case, for the reason that all allegations contained in plaintiff’s petition have been denied by the defendant (now applicant for rehearing), except what is admitted.by it, and that such admissions as may be found in defendant’s answer are of a na.ture which does not relieve plaintiff primarily from the obligation or necessity of proving certain material facts alleged in his petition.
While the rule as stated in the syllabus of our original opinion may have been too broadly applied in the instant case, because qualified denials have in fact been made in the answer based upon defendant’s insufficient information to justify a belief, we are nevertheless of the opinion that our former judgment is correct.
The important question before us is whether the plaintiff as a sub-contractor has proven with sufficient certainty the fact that the materials furnished to the contractor and owner under a building contract upon which defendant was surety, have been furnished within the terms of plaintiff’s contract sued upon. The plaintiff has proven with, certainty that its claim is against the contractor and surety in a specific amount for materials and work actually furnished the building. It is admitted by the defendant, the surety company herein, that the building in question was covered by a building contract to which it, as such surety, and also the owner and contractor are parties. It has been specifically proven and no evidence has been offered to the contrary that the work and material were furnished in accordance with the original contract between plaintiff and the defaulting contractor.
Defendant specifically pleads in the fifth paragraph of his unverified answer filed in these proceedings that plaintiff’s claim has prescribed,, in that the claim has not been recorded within the time required by Act 262 of. 1916. Although this defense, imputing an' admission of the claim, appears *509to have been abandoned, it is now contended that plaintiff cannot recover for lack of sufficient proof that the materials and work furnished were with relation to and within the specifications and all other conditions of the contract which existed between the owner and contractor and upon which contract defendant is surety.
The existence or not of these important facts is bound to have been more within the knowledge of the defendant than of the plaintiff, whose only witness has admitted under cross-examination that the plaintiff company has never been shown or advised of the contents of the contract under which the surety is now sought to be held liable. That defendant did not plead nor attempt to prove the defense which would have relieved it of all liability, raises a presumption that no such defense was available.
We have but recently held, in the case of Healey & Company, Inc., vs. Burglass, 8799 Orl. App., that when evidence which is peculiarly within the power of one litigant to produce in order that his cause or defense may prevail, has not been produced, the presumption is that it would be to his prejudice if produced.
In the instant case, plaintiff, a material man or sub-contractor, has assumed and carried the burden of proof imposed by law to establish his entire claim, in that he has shown delivery to the building and installation therein of exactly what the contract called for under specifications and terms.set out in said contract. Having established this proof, as well as the amount and timely recordation of his claim, and also the acceptance of his work by the owner, he was not. required in suit against the main contractor and surety to either allege or prove that such work was in conformity with specifications set forth in a contract to which he was never a party. That it was not within the requirements or specifications of the building contract, was a matter, if true, of special defense available to those who were parties to the building contract.
We see no reasons for changing our former judgment in this matter.
It is, therefore, ordered that the judgment of this court heretofore rendered be and the same is hereby reinstated.