An allegation that the bond sued upon was "executed" by the defendants is an allegation of its due delivery. Section 874 of the General Statutes provides that if a defendant intends to controvert the execution or delivery of the written instrument sued upon, "he shall deny the same in his answer specifically." Held that an answer to the effect that the defendant had not sufficient information to form a belief as to the allegations of the complaint, and therefore left the plaintiff to prove them, was not a compliance with the statute, and that under such an answer the defendant could not disprove the alleged execution of a liquor license bond upon which the plaintiff sought a recovery. An alleged agreement between the surety on a bond which was duly executed and delivered, and some third person, not named in the bond, that the instrument should not be delivered until such third person had signed it, is no defense in an action by the obligee, in the absence of an averment that the plaintiff had notice or knowledge of such agreement. If a party whose pleading has been successfully attacked by demurrer fails to claim that there are other issues upon which he is entitled to trial, and consents that final judgment may be entered for his opponent, he waives the right to urge such claim upon appeal in this court.
HAMERSLEY, J.
In support of the sufficiency of the second paragraph of his answer, the defendant Corr relies on the principle that a conditional delivery of a bond is not a delivery until the condition has been fulfilled. This principle is not involved in the decision upon the demurrer. The complaint alleges the execution of the bond. This is an allegation of its delivery. Jacobs v. Curtiss, 67 Conn. 497, 501. In failing to specifically deny the execution and delivery of the bond as alleged (General Statutes, § 874), the defendant, for the purposes of the case, admits the execution and delivery; these facts must be accepted upon trial as proved without the production of evidence. Garland v. Gaines, 73 Conn. 662.
As the answer neither denies the delivery nor alleges a conditional delivery, but admits that the bond (upon its face valid in every particular) was delivered to the obligee, the fact alleged in paragraph 2 — that when the defendant signed the bond there was some condition or agreement that it should not be delivered until Michael Hogan (unnamed in the bond) should add his signature as principal — is no defense to this action by the obligee, in the absence of all notice to him of such alleged agreement between the defendant and some unknown person. Greathead v. Walton, 40 Conn. 226, 235; Jacobs v. Curtiss, 67 id. 497. The last cited case substantially governs this. The demurrer was therefore properly sustained as to paragraph 2 of the answer, because it does not appear therefrom that the plaintiff had any knowledge or notice of the alleged conditional signing.
In failing to claim that sustaining the demurrer on this ground left other issues on which he was entitled to trial before final judgment could be rendered, and in consenting that final judgment might be entered for the plaintiff, the defendant has waived the right to raise any question (assuming the matter to be doubtful) in respect to such claim. No such claim was urged in argument, and no error of this nature was assigned in the appeal.