San Dimas Quarry Co. v. American Surety Co. of New York

CONREY, P. J.

The plaintiff appeals from the judgment entered in this action in favor of defendant American Surety Company of New York, and also appeals from an order denying plaintiff’s motion for a new trial.

On April 8, 1911, one L. H. McGowan, as contractor, entered into a contract with the street superintendent of the city of Covina for certain street improvement work. The contract was authorized and the work done in accordance with the Street Work Act of 1885, commonly known as the Vrooman Act,-, and the amendments thereto. In connection with the act of entering into this contract, and on the same date, the contractor, as principal, and the defendant American Surety Company of New York, as surety, executed a bond to the city of Covina, payable in the event that said principal should fail to pay for any materials furnished for the work of improvement described in the contract, or for any work or labor done thereon of any kind; and the bond by its terms was made for the benefit of any and all persons, companies, or corporations performing labor on or furnishing material to be used in said work of improvement. The plaintiff having furnished materials for that work and the principal having failed to pay therefor, this action was prosecuted to recover on the bond.

Section 614 of the Vrooman Act was adopted in 1899, and requires the contractor to give a bond such as was given in this case. That section further provides: “Any material-man, person, company, or corporation, furnishing materials to be used in the performance of said work specified in said contract, . . . 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

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same, or their assigns,- may commence an action on said bond for the recovery of the amount due on said claim, ...” The court found, and the evidence shows, that appellant did-not, within thirty days after said improvement was completed, or at all, file with the superintendent of streets any statement of its claim. It did, within said period of thirty days, prepare a statement of claim in due form and send it with a letter addressed to the board of trustees of the city of Covina. This letter, signed by an attorney of the plaintiff, stated that “We herewith file said claim with the board of trustees of the city of Covina.” The statement of claim was received by the city clerk, who opened it and placed it in the city’s safe, to which the president of the board of trustees and the clerk had access. The evidence shows that the statement of claim was not delivered to the superintendent of streets or filed in his office, that it was never in his possession or under his control, and that he did not even know of its existence until at least six months after it was received by the clerk.