Union Indemity Company et al, Plaintiffs in Error, v. City of New Smyrna, For the Use and Benefit of J. P. Davis, Defendant in Error, 96 Fla. 826

Per Curiam. This is an action at law brought by the City of New Smyrna for the use and benefit of J. P. Davis against The Bowyer Company, a corporation under the laws of Indiana, and Union Indemity Company, a corporation under the laws of Louisiana. The declaration in effect alleges that the Bowyer Company made a contract with the City of New Smyrna to install a water system and executed its bond for the faithful performance of said contract with the Union Indemity Company as surety as required by Sec. 3533 Rev. Gen. Stats, of Florida (Sec. 5397 Compiled General Laws of 1927) and that J. P.

Davis was employed by the Bowyer Company as its superintendent on said contract at a stipulated salary on which there was a balance due and unpaid of $1,652.00. Damages were laid in the sum of $3,000.00. A default was entered against The Bowyer Company. The Unity Indemity Company entered its plea denying Davis’ employment, the performance of any labor by him for it and the agreement to pay his as alleged in the declaration. A trial resulted in a verdict and judgment for the full amount of Davis ’ claim and writ of error was taken to the judgment.

It is contended here that the court below erred in striking defendant’s plea in abatement, in entering a default against the defendant, the Bowyer Company, in admitting evidence plaintiff’s exhibit No. 3, in certain charges to the jury and in denying the defendant’s motion for a new trial. We have examined the record and each assignment carefully and do not feel that a discussion of the questions of law raised would serve any useful purpose. We think, however, that the verdict rendered is without proper basis in the record and that justice would be better served by granting a new trial.

The judgment below is therefore reversed and a new trial awarded. Reversed. Whitfield, P. J. and Terrell and Buford, J. J., concur. Ellis, C. J., and Strum and Brown, J. J., concur in the opinion and judgment.