June 14, 1935
DAIRYMEN'S CO-OPERATIVE SALES CO., A CORPORATION OF OHIO, APPELLANT,
MARYLAND CASUALTY CO., A CORPORATION OF MARYLAND, APPELLEE
Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the court below the Dairymen's Co-operative Sales Company brought suit against the Maryland Casualty Company to recover upon a bond. The case was heard in accord with the Pennsylvania procedure on the statement of claim and affidavit of defense, and a judgment was entered in favor of the defendant. The plaintiff takes this appeal.
While there are other questions involved in the case, all of which have been considered, the decisive one, as stated by the appellant, is that the court committed error "by its conclusion that the plaintiff's pleading is demurrable because it shows on its face such failure to give notice to the defendant as would excuse the defendant from liability on its bond."
The full and detailed opinion of the court below, the citation of authorities, and the justification of its action leaves really nothing to be said by this court, and, as we are wholly in accord with the views of the court below on this decisive point, we confine ourselves to affirming the judgment on Judge McVicar's opinion.
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