Dura-Stress, Inc. v. McCall Construction Co. , 33 Fla. Supp. 156 ( 1969 )

W. TROY HALL, Jr., Circuit Judge.

This action came before the court on the motion of defendant United Bonding Insurance Co. to dismiss the complaint on the ground that it fails to state a cause of action in that it is not affirmatively alleged that the labor and material which are the subject matter of the contract were delivered to or incorporated into the building contract allegedly covered by the performance bonds attached to the complaint as exhibits A and B, and that it is not affirmatively alleged that the bonds, copies of which are attached to the complaint as exhibits A and B, were delivered.

The position of defendant United Bonding Insurance Co. is that the “probata” required in proving plaintiff’s cause of action requires an “allegata” of those items on which the motion to dismiss is based, and that the failure to do so creates a hiatus in the elements necessary to sustain recovery.

The position of plaintiff is that the general allegation contained in paragraph 5 of the complaint complies with Fla. R. Civ. P. 1.120 (c) and sufficiently pleads performance or occurrence of the conditions precedent; if defendant United Bonding Insurance Co. desires to raise the matters set forth in its motion, it should do so by answer.

The court is of the opinion that plaintiff’s position is well founded and that the general allegation contained in paragraph 5 of the complaint complies with Fla. R. Civ. P. 1.120(c); if defendant United Bonding Insurance Co. desires to deny performance or occurrence of the conditions precedent to bringing this action, it should do so by answer in accordance with Fla. R. Civ. P. 1.120(c).

It is therefore ordered and adjudged — (1) that the motion of defendant United Bonding Insurance Co. to dismiss the complaint is denied, (2) that defendant United Bonding Insurance Co. is hereby granted twenty days from the date hereof within which to file an answer to the complaint.