Evola v. Wendt Construction Co.

HANSON, J. pro tem.

*

The main question here is whether a corporate surety bond given by an owner and subdivider of land to the county of Contra Costa, pursuant to the re

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quirements of an ordinance, protects a contractor so as to enable him to sue thereon for moneys due him for constructing, at the instance of the subdivider, the paving, curb, gutters, and tract drainage in the proposed subdivision.

Before the surety bond was given to the county, the plaintiff and the subdivider entered into a written contract by the terms of which the plaintiff was to be paid $28,439 in installments of $1,000 whenever a dwelling was completed and sold in the subdivision known as Westmoreland Park Number 2 until said sum was paid with interest.

An ordinance (XV) of Contra Costa County dealing with subdivisons provides that if the off-site improvements have not been completed before the final map is submitted to the board of supervisors for approval the subdivider must enter into an agreement

to complete the improvements within a specified time

and give a cash or surety bond. “The bond is to guarantee full payment of the cost of all required improvements and to be in lieu of any ‘performance’ bond otherwise required by law. ...” The subdivider entered into such an agreement with the county and provided a surety bond in the penal sum of $25,000 executed by defendant United as surety. The plaintiff, as the contractor, completed the off-site improvements for the subdivider in the time allotted and they were accepted and approved by the board of supervisors. The plaintiff received no payments on account because the sub divider and owner defaulted on a trust deed he had executed and so ownership of the land passed to third parties upon its foreclosure.

Although the bond named the county only as the obligee, nevertheless, the plaintiff contends that the bond is a labor and materials payment bond running in favor of third party labor and material claimants. This contention is predicated upon the language of the ordinance, which in substance is likewise found in the bond, reading as follows: “The bond is to guarantee full payment of the cost of all required improvements and to be in lieu of any ‘performance’ bond