Republic Iron and Steel Co. v. Patillo

JAMES, J.

This action was brought against defendants as sureties on a bond given for the protection of materialmen and laborers under a contract made by the Patillo Contracting Company with the city of Hollywood for the doing of certain street work. Defendant Patillo made default and defendant Sherer has appealed from a judgment entered against him, and also from an order made denying his motion for a new trial.

Plaintiff in its complaint set out that the Patillo Contracting Company, on .or about the 13th of August, 1909, entered into a contract with the street superintendent of the city of Hollywood, a municipal corporation, for the improvement of Highland avenue, a public street within said city; that contemporaneously with the execution of said contract the contracting company, as principal, and defendants as sureties, executed and delivered to the city of Hollywood their undertaking in writing in the sum of $10,000, a copy of which was attached to and made a part of the complaint. It was then alleged that plaintiff furnished to the contracting company materials of the value of $1,085, for which said contracting company had refused to pay. A demand was alleged to have been made upon the contracting company and upon the defendants as sureties prior to the commencement of the action. The complaint contained no allegation as to any claim having been filed with the superintendent of streets of the city of Hollywood on behalf of the plaintiff within thirty days after the work of improvement was completed; neither did it appear from the complaint as to when such work was completed, if at all. Upon trial being had, the court made its findings in favor of the plaintiff, following the allegations of the complaint, and made no finding as to the time of completion of the work, or as to whether, plaintiff had filed any, claim, with

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the superintendent of streets. In our opinion, these findings do not sustain the judgment. It must be assumed from the facts found that the city of Hollywood entered into the contract with the Patillo Contracting Company under authority of the statute permitting it so to do, and that the bond upon which appellant was a surety was given pursuant to such statute. Section 6% of the Vrooman street act, as amended in 1899 (Stats. 1899, p. 23), provides that where contracts for street improvement are made by a municipality, a bond shall be required to be filed with the superintendent of streets, which bond shall be made to inure to the benefit of any and all persons, companies or corporations who perform labor or furnish materials to be used in the work of improvement. It is provided further in this section as follows: “Any material-man, person, company, or corporation furnishing materials to be used in the performance of said work specified in said contract, or who performed work or labor upon the said improvement, whose claim has not been paid by the said contractor, company, or corporation, to whom the said contract was awarded, may, .within thirty days from the time said improvement is completed, file with the superintendent of streets a verified statement of his or its claim, together with a statement that the same, or some part thereof, has not been paid. At any time within ninety days after the filing of such claim the person, company, or corporation filing the same, or their assigns, may commence an action on said bond for the recovery of the amount due on said claim, together with the costs incurred in said action. ’ ’ While it was not alleged in the complaint, nor made the subject of any finding by the court, that the bond was given under authority of the statute, considering that the municipality was only authorized to act under permission of statutory authority in making the street improvement, and further, that the bond in its terms was phrased according to the statutory requirement, it must be assumed that the contract was so made and the bond given in connection therewith accordingly.