Bunnell v. Basich Brothers Construction Co.

WHITE, J.

Plaintiff brought this action to enforce a liability allegedly created pursuant to the terms of sections 544

[539]

and 545 of the Code of Civil Procedure. The facts necessary for a proper consideration of the issues involved herein are that defendant Basich Brothers Construction Company, on or about the 10th day of September, 1930, entered into a contract with the State of California through its Department of Public Works, Division of Highways, for the construction by said defendant corporation of certain highway improvements. Thereafter, on or about October 1, 1930, defendant corporation entered into a subcontract with Bakerbower Transportation Company (hereinafter referred to as the transportation company) for the performance by said transportation company of a portion of said work of highway improvement.

On or about January 9, 1931, plaintiff: in the instant cause commenced an action in the Superior Court of Los Angeles County against the transportation company, and upon the issuing of summons therein a writ of attachment was also secured. On the day of its issuance the writ of attachment was served upon Basich Brothers Construction Company, who retained said writ until January 27, 1931, when in answer to the demand therein contained the construction company made return to said writ that it did not have in its possession or under its control any money or property belonging to the defendants in the action out of which the writ of attachment arose, and that it was not indebted to either or any of the defendants therein.

Following trial before the court, sitting without a jury, judgment was rendered in favor of defendants, and from such judgment plaintiff prosecutes this appeal.

By the terms of the subcontract of October 1, 1930, respondent construction company was authorized by the transportation company to retain all or any portion of the moneys which might become due or owing the latter thereunder, in the event and during all times where there was due, owing and unpaid by the transportation company any sum or sums for work or labor performed, supplies, implements, vehicles, or machinery furnished in connection with the work being performed by the subcontractor, transportation company. It was also provided in the subcontract that in addition to the provisions therein contained respondent construction company was clothed with the right to withhold sufficient moneys to answer for all unpaid labor and materialmen’s claims against said