Hoffman v. Kennedy

SHAW, J.

Defendant Guardian Casualty and Guaranty Company appeals upon the judgment-roll alone from a judgment rendered against it as surety upon a bond to indemnify all persons performing labor or furnishing materials in the execution of a contract between the county of Los Angeles and James Kennedy for the doing of certain public work.

The material facts of the case, as shown by the findings, are as follows: The county of Los Angeles, on November 8, 1916, duly entered into a contract with defendant Kennedy for the construction of a storm-drain in the district known as Long Beach Drainage District No. 1, at a cost of $84,936. The contract included the work of excavating a trench in State Street, in the city of Long Beach, wherein to construct the storm-drain, and, as a part of the work, provided for the refilling of the trench and resurfacing of the street. On January 16, 1918, plaintiff entered into a contract with Kennedy pursuant to which he, for $2,477.10, furnished materials and did all of said resurfacing work so required of Kennedy under his contract with the county, which work plaintiff completed on- May 17, 1918. Whereupon, default having been made in the payment of the amount due under the terms of the contract, plaintiff instituted this action to recover the same upon two bonds executed by Kennedy on

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November 8, 1916, with the Guardian Casualty and Guaranty Company as surety thereon, each of which bonds is made the subject of a separate cause of action as set forth in the complaint.

The county of Los Angeles, in having the storm-drain constructed, acted under and in accordance with the provisions of an act entitled, “An act to promote the drainage of wet, swamp and overflowed lands, and to promote the public health in the communities in which they lie,” approved March 21, 1903. (Stats.. 1903, p. 354, and the amendments thereto, which act as so amended appears in Leering’s Gen. Laws as Act 986.)

The act (sec. 8a) provides that, “before entering upon such contract, a bond shall be executed and filed, running to the county, in an amount not less than one-half of the contract price of the wort, signed by the contractor and two or more sureties, who shall aggregatedly, unless surety companies, qualify before an officer entitled to administer the oath in a sum equal to the amount of the bond, each surety in the amount for which he becomes surety. Such bond shall be conditioned for the faithful execution of the contract by the party contracting to do the work, and the payment by him for all labor and materials furnished for or in the doing of the work. The form and sufficiency of said bond shall be passed upon by some member of the board of supervisors, and such bond shall inure as well to the benefit of any and all persons furnishing labor or materials for the work as to the county.”