Lamson Co., Inc. v. Jones

ARCHBALD, J.,

pro

tem.

Action by plaintiff against a contractor and his surety to recover balance of agreed price of materials furnished and installed by plaintiff in a public service building erected by defendant Jones, as general contractor, under a contract with the city of Glendale. The work was fully completed May 20, 1929, and complaint was filed January 9, 1931. A demurrer filed by defendant Central Surety and Insurance Corporation on the ground that the action was barred by section 2 of the Act of May 10, 1919, amended May 22, 1925 (Stats. 1919, p. 487; Stats. 1925, p. 539), was sustained by the court with leave to amend. A similar demurrer was also interposed by said defendant to the amended complaint filed by plaintiff, which demurrer was sustained without leave to amend and judgment thereafter entered dismissing the action as to the demurring defendant.

Plaintiff has appealed, and contends that its complaint states a cause of action on the faithful performance bond given to the city of Glendale under the contract, even if the labor and material bond is a statutory bond and the action on it barred by said section.

The amended complaint alleges the execution of two bonds. The first binds said contractor and defendant surety company to the city of Glendale “and to all persons,

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companies and corporations entitled to file claims under the act approved May 10, 1919, and amendments thereof”. The condition of the bond follows the language of the undertaking required to be filed under section 1 of such act, even to the provision of “a reasonable attorney’s fee to be fixed by the court” in case suit is brought thereon, and is made by its terms “to inure to the benefit of any and all persons, companies and corporations” entitled to file claims under the act. No question remains, after reading the act and the bond, as to the instrument being a bond given in compliance with the requirements of the act. It is true the complaint does not allege that the penalty of the bond is “in a sum not less than one-half of the total amount payable by the terms of the contract”, but we may certainly assume that the pleader would so have alleged if anything appearing on the face of the undertaking was not in conformity with the act, and “it must be presume that the pleader stated his case in the most favorable manner to himself”