Jew v. Pacific Employers Insurance

WOOD, P. J.

This is an action against the surety on a building contractor’s bond. Plaintiffs appeal from a summary judgment in favor of the defendant surety.

The complaint alleged that on August 12, 1957, plaintiffs entered into a written agreement with the J. W. Janes Construction Company whereby that company agreed (1) to construct a building for plaintiffs according to certain plans and specifications for $61,717, and (2) to complete the work within a reasonable time; that to secure the faithful perform

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anee of the agreement, the company, as principal, and the defendant, as surety, executed their bond in said amount for the benefit of plaintiffs; the construction company failed to faithfully perform the building contract; about January 2, 1959, the Sullivan Electric Company commenced an action against the plaintiffs herein and the construction company for goods delivered and services rendered; in that action the plaintiffs herein filed a cross-complaint against thé construction company to recover damages in the amount of $30,000 for the negligent manner in which the company constructed the building, and for its failure to complete the building within a reasonable time; it was adjudged therein that plaintiffs herein recover $23,224.34 and costs from the construction company as damages for the faulty, negligent, unskillful, and delayed performance of the building contract; the judgment, which was entered on March 1, 1960, remains wholly unpaid; by reason thereof, the defendant, as surety, is liable to plaintiffs on said bond for the amount of the unpaid judgment.

In the present action the defendant insurance company admitted, in its answer, that the construction company failed to faithfully perform the contract, and the plaintiffs herein obtained said judgment against the construction company; and the defendant herein denied that it is liable for the payment of the judgment or any other amount. Defendant alleged, as a separate defense, that plaintiffs’ action herein was not instituted within the time required by provisions of the bond.

In support of its motion for a summary judgment, the defendant filed an affidavit of its attorney, Mr. Van Tassel. That affidavit was in substance, as follows: The copy of the bond attached to the complaint is a correct copy of the contract bond executed by the defendant. The coverage provided in the bond was subject to conditions, one .of which (fifth condition) was, as follows: “That no suit, action or proceeding to recover on this bond shall be sustained unless the same be commenced within six months from the completion of said structure or work of improvement, as ‘completion’ is defined in Section 1193.1 of the Code of Civil Procedure of California. Any notice to the Surety may be addressed to or served upon it at its office at 1033 So. Hope Street, Los Angeles, California.” On August 28, 1958, a notice of com-■ pletion, executed by plaintiffs, was recorded in the office of the Recorder of Los Angeles County, a copy of which notice is attached to the answer of defendant. On September 9, 1960,