502, recognizes the same rule, holding that if registration officers refuse to act, or fail to perform the duties imposed upon them, the election is void.

Defendants in error make a point as to whether the language of the pleadings constitutes an allegation and admission that no registration for such election was had in the town, claiming that the language of the allegation was only that the board of election judges refused to sit, etc., while the admission was "that no one was registered," etc. We think this is too technical for coinsideration, and that the fair import of the language used is that there had been no registration of the voters prior to the election. But, apart from this, the evidence discloses, and the record conclusively shows, that there was no registration of voters and the real contention in the case was, whether a registration was essential to a valid election. As the right of defendants in error to these offices rested solely on an election which was invalid, the court could not lawfully adjudge them entitled thereto; and as plaintiffs in error were entitled to hold over by virtue of a previous election, they should not have been disturbed in their possession of the offices until their successors were elected and qualified. The judgment is, therefore, reversed, and the case remanded for proceedings not inconsistent with the views herein expressed.

Decision en banc.

Decided November 6, A. D. 1916. Rehearing denied June 4, A. D. 1917.

No. 8552.

NATIONAL SURETY COMPANY v. QUEEN CITY LAND AND MORTGAGE COMPANY.

1. PLEADINGS-General Averment of Performance is permitted by the code (sec. 72).

2. Non-performance of Conditions Precedent, must be expressly pleaded, Penn. Co. v. Ornauer, 39 Colo. 498, followed.

3. Matter Contested but Not Pleaded. A defense actually urged and tried in the court below, will be considered in the court of review, though not pleaded.

The evidence examined and held not to establish the contention that a defense not pleaded was in fact presented and contested.

4. SURETY COMPANY-Undertakings of-Surety's Liability. The surety is not exonerated by alterations or deviations from the exact terms of the contract, where no damages result.

Error to Denver District Court, Hon. James H. Teller, Judge.

Mr. GEORGE P. STEELE, for plaintiff in error. Messrs. PONSFORD & CARNINE, for defendant in error. Mr. Justice Hill delivered the opinion of the court: THE defendant in error, hereafter called the plaintiff, secured judgment against the plaintiff in error, hereafter called the defendant, upon a contractor's bond. Two trials were had, each to a jury, in both of which the verdict was for the plaintiff. In his opening brief, counsel for defendant says:

"Practically all of the testimony at both trials was directed to an issue whether in the construction of the project, the plans and specifications had been so materially departed from that the surety on the bond was relieved. This particular issue was given to each jury under correct instructions, and will not therefore be discussed here."

Counsel follow this with the statement:

"But another and an equally important issue was offered by the pleadings, which involved the question whether the Queen City Company itself had complied with certain conditions precedent required of it by the terms of the bond. The Surety Company contended that the Queen City Company had not given it the required notice of the failure on the part of the Golden Company to complete the project within the time specified for such com

pletion. It is in relation to this question that the errors now complained of were committed."

That portion of the bond, the conditions of which it is now claimed were not complied with, reads:

"3. If said principal shall in any manner default in the performance of any matter or thing in said contract specified to be by said principal performed, or in the event of said principal abandoning the work provided by said contract to be done by said principal, the obligee shall immediately so notify the Company, and thereafter the Company shall have the right, at its option, to assume and sublet said contract, and to proceed thereunder as if no default or abandonment had occurred;

*

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9. All notices and other evidence required by this instrument to be furnished by the obligee to the Company shall be in writing, and shall be forwarded by registered letter addressed to the Company at its principal offices in the City of New York."

We agree with counsel, that practically all of the testimony was directed to an issue whether in the construction of the project the plans and specifications had been so materially departed from that the surety on the bond was relieved. But we cannot agree that an issue was offered by the pleadings which involved or raised the question that the plaintiff had not complied with the conditions precedent required of it by the terms of the bond pertaining to notice in order to entitle it to recovery. Paragraph 7 of plaintiff's second amended complaint alleges: "That the plaintiff has performed each and every term, provision, covenant and condition on its part to be performed, in said contract and in said bond contained." This method of pleading is permitted by section 72, Revised Code, 1908, which reads:

"In pleading the performance of conditions, precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions, on his part; and if such allegations be controverted, the party

pleading shall establish on the trial the facts showing such performance."

The defendant's answer to this paragraph reads: "Denies the allegations in paragraph 7 of said second amended complaint contained."

This denial was insufficient to put plaintiff on proof concerning the question of notice. A similar question was under consideration in Penn M. L. I. Co. v. Ornauer, 39 Colo. 498 (90 Pac. 846, 505), wherein, at page 505 this court said:

"It is unquestionably true that under a general denial a defendant may introduce any evidence which controverts the facts which plaintiff is bound to establish in order to sustain his action. Under this doctrine, the defendant contends that, under its general denial, it may show that what it calls conditions precedent had not been fulfilled. In this complaint there was an averment generally permitted by section 56 of our code, that plaintiff had fully performed all conditions of the contract to be by him performed. Where such an averment of performance of conditions precedent is allowed in the complaint, the rule is that if a defendant relies upon nonperformance, he must specially allege the condition or conditions, on the nonperformance of which he relies, and negative their performance. Bliss on Code Pleading (3d ed.), § 356a; Nash on Pleading 300."

To the same effect are: Insurance Company v. Allis Co., 11 Colo. App. 264, 53 Pac. 242; Branham v. Johnson, 62 Ind. 259; Park v. Holmes, 22 Ill. 522; Preston v. Roberts, 75 Ky. 570; Kahnweiler v. Phenix Ins. Co., 67 Fed. 483; 14, C. C. A. 485; Hamilton v. Insurance Co., 136 U. S. 242, 34 L. Ed. 419, 10 Sup. Ct. 945; Hamilton v. Home Ins. Co., 137 U. S. 370, 34 L. Ed. 708, 11 Sup. Ct. 103; Breard v. Mechanics' & Traders' Ins. Co., 29 La. Ann., 764; Continental Ins. Co. v. Chase, 89 Tex. 212, 34 S. W. 93; Evarts v. U. S. Mut. Acc. Assn., 16 N. Y Sup. 27.

The record discloses that the present counsel of defendant did not represent it in the trial court, and in his

reply brief he practically concedes the correctness of the position above outlined, but claims that the question of the time of the service of the notice was treated as an issue; that testimony was offered concerning it and an instruction given in relation thereto, that for these reasons, it must, for the purposes of this hearing, be thus considered. Anderson et al. v. Sloan, 1 Colo. 485; Althoff Mfg. Co. v. Althoff, 52 Colo. 501, 123 Pac. 326; Perkins v. Russell, 56 Colo. 120, 137 Pac. 907, and other cases are relied upon as sustaining this conclusion. We adhere to the ruling in these cases, but cannot agree that the record shows any testimony was offered upon the question as an issue in the case. The defendant offered no testimony concerning it. The only testimony upon behalf of plaintiff which tended to establish when notice of the default of the contractor was given, was when, upon request of plaintiff, the defendant produced a notice signed by the plaintiff to the defendant notifying it of the default, and requesting that it exercise its option of election thereunder. It bore date November 3d, 1911. The time limit for completion of the contract was October the 5th, 1911, but no witness testified as to when the notice was sent. From these dates, it would appear to be about twenty-nine days after the default by the contractor. We cannot agree, however, that the date of the giving of the notice was treated as an issue. It appears to have been raised for the first time upon defendant's motion for a nonsuit, but after this motion was overruled it neither asked to amend its pleadings pertaining to that question, nor offered any testimony concerning it. In this notice the defendant was requested, as allowed by the bond, to exercise its option to assume the contract and complete the work, or designate its unwillingness to do so. When this clause in the bond is considered, it is more consistent with the record to assume that the notice was offered in evidence to show that the defendant had had the privilege of exercising its election to proceed with the work, than that the notice was given at any particular time. It is quite apparent