Myers v. Alta Construction Co.

GIBSON, C. J.

Plaintiff, a licensed surveyor and civil engineer, brought this action against a contractor and its surety to recover the value of surveying and engineering services rendered in connection with the construction of a warehouse. Defendant surety has appealed from a judgment in favor of plaintiff.

The bond given by the surety was executed and recorded pursuant to the mechanic’s lien law (Code Civ. Proe., § 1183), which requires the filing of a lien claim or the giving of a written notice to the surety as a condition precedent to an action on the undertaking. It is conceded that plaintiff failed to take either of these steps and that he is not entitled to recover against the surety unless he was excused from complying with these statutory requirements by the following provision in the bond: “The Principal and Surety further agree to pay all just claims of laborers arising under said contract, within two (2) weeks after demand, and to waive the filing of lien claims or giving written notice required by Statute as a condition to bringing suit to enforce the same.” It appears that plaintiff’s services were professional in nature and for the most part consisted of furnishing field crews. Defendant contends that the waiver provision of the bond applies only to manual laborers who personally perform the work for which a claim is made and that plaintiff is not within its terms.

The meaning of the word “laborer” is not fixed in its application (see Webster’s Dict, of Synonyms), and it has been said that “it would be difficult, if not impracticable, to give any general definition of the word ‘laborer’ which would at once include all of the cases falling within the concept of the word and exclude those falling without.” (See 31 Am. Jur., p. 834.) It is commonly used to designate one whose work demands strength and physical toil rather than skill. (See Webster’s Diet, of Synonyms.) It is also applied to one who performs work which requires a combination of skill

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and physical exertion as distinguished from one who depends primarily upon the exercise of mental faculties to accomplish a task. (See

Kerr

v.

Nelson,