Barr Lumber Co. v. Joy Construction Co.

CONREY, P. J.

Appeal by the defendants W. R. Hefley and Charles C. Hayes from a judgment entered against them as sureties on a bond given by a contractor under the street improvement law known as the Vrooman Act. (Deering’s Gen. Laws, 1915 edition; Act 3930, p. 1714.) The plaintiff sued on a claim for materials furnished by it, and on two assigned claims of a similar nature, all being for materials tised by the contractor in performance of the work. After the work had been actually completed, verified statements were filed with the street superintendent of the city of Whittier, with whom the contractor had made his contract, as follows: On May 24, 1916, by the plaintiff; on May 25, 1916, by plaintiff’s assignor, A.- H. Gregg; and on May 24, 1916, by plaintiff’s assignor, C. Forsyth & Son. It is claimed by plaintiff that these notices were filed in conformity with the requirements of section

6y2

of said statute.

[410]

The street superintendent accepted the work constituting said improvement on the twenty-third day of June, 1916. Additional notices of claim were filed with the street superintendent by the plaintiff and by Gregg on July 21, 1916, and by C. Forsyth

&

Son on July 28, 1916. As to these July notices, their sufficiency need not be discussed, if the earlier notices were filed within time and in due form.

Appellants claim that all of the notices were filed more than thirty days from the time the improvement was completed, and that therefore, under the terms of said section 6%, they were all filed too late, and that for that reason any right of action on said claims was lost. In the case of

Pacific Sewer Pipe Co.

v.

United States F. & G. Co.,

32 Cal.

App. Dec.

186, [197 Pac. 332], in which the decision of this court has this day been filed, it is held that the thirty days, not later than the end of which the claimant was required to file his statement with the board of public works (street superintendent, in the instant case), begins to run from the date of the actual completion of the work, and not from the date of the acceptance of the work by the board of public works or street superintendent. [Editor’s note: For decision of supreme court, on rehearing of