Federal Surety Co. v. Basin Const. Co‪.‬

Contracts ? State Highway Construction Contracts ? Breach ? Principal and Surety ? Surety Bonds ? Attorneys Fees not Recoverable ? Appeal ? Theory of Case ? Pleadings ? Defense of Nonperformance of Condition Precedent ? Waiver. Appeal ? Theory of Case. 1. Where a cause was tried on a certain theory, the parties are bound thereby on appeal. Pleading ? Answer may Supply Material Allegations Omitted from Complaint. 2. A material allegation omitted from the complaint may be supplied by the answer. Contracts ? Failure of Plaintiff to Allege Performance of Condition Precedent ? Waiver of Defense of Nonperformance. 3. Under the rule that a party to a contract entitled to demand performance of a condition precedent may waive his right either expressly or impliedly, held that where the complaint in an action for the breach of a highway construction contract failed to allege affirmatively that plaintiff had performed a condition precedent, but defendant in its answer treated the contract as fulfilled in that behalf instead of relying on nonperformance of it as a defense, pleading instead that completion of the work was prevented by plaintiffs taking it over, defendant must be deemed to have waived its right to attack the complaint as insufficient on appeal on the ground that it did not allege performance of the condition precedent. Same ? Breach ? Election of Remedies ? Waiver of Breach. 4. Where there is a breach of contract the party not in default may elect between treating the breach as a discharge of the contract, or proceed on the theory that it is still in force; if he takes the latter course he waives his right to rely on the breach. Attorneys Fees ? When and When not Recoverable. 5. The general rule is that attorneys fees are not recoverable in actions at law or in equity, unless expressly allowed by statute or the contract in suit makes definite provision for their payment. Same ? Provision for Attorneys Fees One in Nature of Special Damages ? Pleading and Proof. 6. A provision in a contract for the allowance of attorneys fees on action instituted to recover on the contract, is in the nature - Page 115 of one for special damages, recoverable only upon appropriate allegations and proof. Surety Bonds ? Extent of Liability of Surety ? Bond and Contract to be Construed Together. 7. The obligation of a surety is coextensive with, and measured by, the promises of the principal to the obligee contained in the contract, for the faithful performance of which by the principal the surety gives its bond; and in determining the liability of the surety, both the contract and the bond must be construed together. Same ? State Highway Construction Contracts ? Surety Bonds ? Damages Recoverable Do not Include Attorneys Fees. 8. The clause in a surety bond given to secure the faithful performance of a state highway construction contract, that the surety would pay "any and all damages directly arising by failure of the principal to perform faithfully said contract," held not to include attorneys fees incident to an action on the bond, the terms referring only to the usual and ordinary damages resulting from a breach of the contract.