California Trojan Powder Co v. Garnsey

CONREY, P. J.

This is an appeal by the plaintiff from a judgment dismissing the plaintiff’s action as to the defendants Leigh G. Garnsey and Globe Indemnity Company upon plaintiff’s refusal to amend its complaint after an order sustaining the demurrer thereto of those defendants. The plaintiff furnished materials to a subcontractor, whose contract was with the defendant Garnsey. Garnsey was the

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contractor in the principal contract, which was made between him and the state of California for the construction and completion of a portion of the state highway in Ventura County. The materials furnished by the plaintiff were used by the subcontractor upon a part of the work included in the principal contract. On obtaining his contract with the state, Garnsey, together with defendant Globe Indemnity Company, executed a bond for the purpose and in the terms required by an act of the legislature of the state of California, entitled “An act to secure the payment of claims of materialmen, mechanics, or laborers, employed by contractors upon state, municipal, or other public work,” and an act amendatory thereof. (Stats. 1897, p. 202, and Stats. 1911, p. 1422.) If under the statute as in force during the year 1914, when the contract and undertaking were made, such. an undertaking covered the matter of payment for materials furnished to a subcontractor to be used and which were used in the performance of the work described in the principal contract, then the complaint stated a cause of action against the defendants who executed that undertaking. In the case of

Associated Oil Co.

v.

Commary-Peterson Co.,

32 Cal. App. 582, [163 Pac. 702], the facts were similar to the ease at bar and the same 'question was presented. It was there held that the statute in question is not confined to the engagements of the contractor. “It was manifestly intended to cover all labor and all material contributing to the improvement, whether furnished directly to the contractor or indirectly through a subcontractor.” In the absence of any controlling decision in this state, the court discussed a number of decisions rendered in other jurisdictions. A petition for a rehearing of that cause in the supreme court was denied.