County of Los Angeles v. Margulis

FRICKE, J.,

pro tem.

Appeal by Metropolitan Casualty Insurance Company of New York from a judgment against defendants.

Defendants Margulis and Stulman subdivided a tract of land in unincorporated territory of the County of Los Angeles and prepared a map or plat thereof showing the lots, parcels, streets and certain avenues and alleys which were to be devoted to public use, which map contained a certificate of dedication of the streets, avenues and alleys. On July 29, 1926, the County of Los Angeles entered into an agreement with Margulis and Stulman as the other party, and called the “contractor”, whereby in consideration of the acceptance by the board of supervisors of the highways offered for dedication the contractor agreed to improve certain named streets and build a storm drain, the work to be at the expense of the contractor and to be under the supervision and to the satisfaction of the road commissioner of said county. It was further agreed that the contractor had filed with the county a bond in a sum not less than one-half the amount payable by the terms of the contract, to secure the claims for labor and material, and a bond in similar amount for the faithful performance of the contract.

[59]

Neither the contract nor the bond sued on purport to set out the estimated cost o£ the project, but the complaint alleges such cost to be $31,293.62. On about July 26, 1926, appellant executed and delivered to Los Angeles County the bond to secure the faithful performance of the contract, in the penal sum of $15,650. Though extensions of time were granted the contractor, it appears that only a small amount of the improvement work was ever done, and that the work called for by the agreement and which the contractor failed to perform was of the reasonable value of $28,582.78. While claiming damage in this amount for the breach of the contract, the county was limited in its recovery against the surety to the sum of $15,650, the amount of the bond. The court, on the evidence of plaintiff, no proof being offered by defendants, gave judgment for plaintiff in the sum of $15,650.

The same points urged by appellant against the judgment here were raised by its objection to the introduction of any evidence because the complaint failed to show any cause of action.