United States v. S. Birch & Sons Const. Co.

PRAY, District Judge.

The defendants filed a motion to dismiss the above entitled action for the reason that the amended complaint fails to state a claim against them, or either of them, upon which relief can be granted. The motion came on regularly for hearing on briefs submitted by counsel for the respective parties.

Counsel contend there can be no recovery against the Surety Company unless within the express terms of the bond, and that if no recovery can be had against the Surety Company, then plaintiff can not maintain an action of this type against the other defendant.

This action was…