Sunlight Electric Supply Co. v. McKee

FINLEY, J. pro tem.

*

This appeal involves a stop-notice proceeding brought under the provisions of section 1190.1 et seq. of the Code of Civil Procedure. It resulted in a judgment for plaintiff-respondent Sunlight Electric Supply Company.

McKee Construction Company was awarded the prime contract for construction of an elementary school. Velmie, the electrical subcontractor, purchased supplies from plaintiff-respondent, incorporated them into the school and was paid by McKee, but failed to pay respondent for a major portion of the supplies. McKee’s written contract with Velmie expressly authorized Velmie’s purchase of the necessary electrical fixtures and supplies. Appellant maintains, however, that this authorization created no privity, direct or otherwise,

[49]

between McKee as the general contractor and respondent as the supplier of Velmic.

On November 28, 1961, respondent served a stop-notice on the San Diego Unified School District and the San Diego County Auditor pursuant to the provisions of California Code of Civil Procedure, section 1190.1. On December 13, 1961, McKee filed a release of stop-notice bond in which McKee and the surety promised that if plaintiff recovered on its claim under the stop-notice that they would pay the claim together with costs of suit. Respondent filed this action against McKee, the school district and Velmic. Velmic defaulted and took bankruptcy. Judgment was awarded against McKee and the school district and McKee appealed, with the school district joining so that all affected parties would be before the court. As an indemnifier under the release of the stop-notice bond, McKee had the duty and the right to defend the action in the name of the school district and to assert defenses of the district. (Civ. Code, § 2778;

Dutil

v.

Pacheco,

21 Cal. 438 [82 Am. Dec. 749].)

Respondent’s complaint was filed March 7, 1962. A notice of pendency dated March 6, 1962 was served March 21, 1962, on the school district, the county auditor and the county controller. Section 1197.1, subdivision (b), of the Code of Civil Procedure requires a notice of pendency to be served upon the true owners of the property within five (5) days of the commencement of a stop-notice proceeding.