Williams v. Tingey

SHAW, J.

This is an action to recover from the United States Fidelity & Guaranty Company as surety upon the bond of C. H. Tingey given as contractor for the doing of certain

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street work in the city of San Diego. Judgment went for plaintiff, from which, adopting the alternative method, the defendant United States Fidelity & Guaranty Company appeals.

The bond was given by C. H. Tingey, to whom the contract for doing the work was let by the city, and, after reciting that the obligors, namely: Tingey as principal and" the United States Fidelity & Guaranty Company as surety, were bound unto all persons performing labor or furnishing materials to be used in the work called for by said contract, contained a provision to the effect that if the principal therein, said Tingey, failed to pay for any materials or supplies furnished for the work, or for any labor done thereon, said United States Fidelity & Guaranty Company, as surety thereon, would pay the same to an amount not exceeding the sum specified in the bond.

Tingey as contractor sublet a part of the work to one Rubendahl, to whom plaintiff furnished certain materials used in the performance of the work, and payment not being made therefor, he, within thirty days from the completion of the work, filed with the street superintendent a verified statement of his claim and nonpayment thereof, as required by the act.

Notwithstanding the fact that the appeal is had pursuant to the alternative method, in which case, as provided by section 953c, of the Code of Civil Procedure, the parties are required to print in their briefs such portions of the record to which they desire to call the court’s attention, appellant fails to direct our attention to anything in the record in support of its claim for a reversal.

Without merit is the contention that, as a condition of maintaining the suit, plaintiff should first have sued the subcontractor and established therein that the materials were actually used in the work. This fact was one of the controverted issues, and the allegation of the complaint to the effect that they were so used was-found to be true. The fact that Rubendahl, the sub-contractor, was not made a party defendant to the action, could not affect appellant’s right to plead and prove any defense which it was entitled to make, and it appearing that the materials were furnished to be used in the performance of the work, and were so used, plaintiff was entitled to judgment in accordance with the condition of the bond, and hence Rubendahl was not a necessary party defend