The Montgomery advertiser., 1903-08-07
FIDEL1rY a DEPOSIT co. or MARY

FIDELITY & DEPOSIT co. or MARY LAND V. ROBERTSON.
 Action against surety on bond securing building contract. Appeal from the Cir cult Court of Montgomery.
 l. Action upon a bond to secure build ing contract; sufiiciency of complaint: Tn an action against a railroad company upon e bond which was given to secure the faithful performance of a contract providing for the building of house, a count of the complaint which sets out
 in full the bond sued on and also the contract secured. and then ayers that The said contract was not performed in cer- tain specified particulars. the averments pointing out with definiteness the breaches complained of. and said counts then claim the damages resulting from such breaches. such counts are sufficient and are not subject to demurrer.
 2. Same; sufficiency of plea; owners right to waive stipulations in contract. The provisions of a contract for the build ing of a house provides that the amount agreed upon was to be paid in equal instalments upon the approval of the architect and IS per cent. should be re- served from all payments until after the completion of the housei Is a provision solely for the benefit of the owner, and. therefore. in an action by the owner upon a bond given to secure the faithful per- formancc of such contract, a plea which sets up that the plaintiff paid to the contractors money on said contract be- fore 1t was due hereunder and without the certificate of the architect and failed to deduct 15 per cent. as stipulated, pre- sents no defense and is demurrable.
 g. Same; same; right to make altera- tions-In an action against surety upon n bond given to secure tho faithful per forD1ance of contract for the construc- ton of house, to recover damages for the breach of said contract, where such contract, which is set out in full in the complaint provides for making "altcra- tions of. deviations from. additions to, or omissions in, said contract" without avoidance of the same and upon the basis of a corresponding change in the original contract. pleas which set up the fact that after the execution of the bond sued on the plaintiff without the knowl- edge or consent of the defendant entered into an agreement with the contractors by which material changes were made Tn the contract and the reproductions there under without the knowledge or consent of the defendant and without any addi- tional time being allowed for the com pletion of said contract, set up no de- fense and are demurrabie.
 4. Sufficiency of plea; res adjudicata- judgment to conclude either party to a suit as to the matter thereof, must be such as to work mutual estoppel; and, therefore, a plea of res adjudicata which shows that the parties litigant in the two suits are the same. is bad and sub Ject to demurrer.
 5. Action upon a bond to secure per formance of building contract; sufficiency of repiication-In an action against surety upon a bond for the construction of house. to recover damages for the breach of said contract. where pleas are interposed which set up that in former suit brought by the contractors against the plaintiffs in. the present suit, the latter was. by the verdict and Judgment allowed the benefit of a counter claim then interposed for the identical damages here sued for, whereby the same were paid or extinguished by or at the ex- pense of the parties in the bond sued on, replications to said pleas which do not show that the plea of recoupment was withdrawn or disallowed in the for