Lewis v. Hopper

DOOLING, J.

Plaintiff, a subcontractor, recovered a judgment against defendant Peerless Casualty Company upon a labor and materialmen’s bond for the balance due him upon his subcontract in the construction of a building for Pacific Telephone and Telegraph Company in Auburn, California. Appellant’s bond contained the following provision:

[366]

the suit or action shall be commenced within six (6) months after completion of the work described in said contract.” No lien claim was filed by respondent and the only question presented on appeal is whether he commenced his action “within six (6) months after completion of the work described in said contract” as required by the last clause of the provision of the bond above quoted.

[365]

“No suit or action on this bond to recover for labor performed or material furnished in respect to work herein referred to shall be sustained unless the same be commenced within the period provided by law after the claimant files his claim or lien, or if he files no such claim or lien, unless

[366]

The owner recorded notice of completion on November 3, 1952, over six months before the filing of this action, since the complaint herein was filed on June 12, 1953. The agreed statement of facts, however, recites that on January 5, 1953, the plaintiff installed four soap dispensers in the building “called for in his sub-contract, and specified in the general contract . . . and the testimony was to the effect that the work took about four hours, and would be worth about One Hundred Dollars . . . The reason for the delay in installing the said soap dispensers was that the type of soap dispenser specified in the general contract and insisted upon by the owner was not theretofore obtainable. Neither party is chargeable with any fault insofar as this delay is concerned. ’ ’