Gladding, McBean & Co. v. Southern Securities Co.

HOUSER, J.

Prior to the happening of the particular incidents upon which the action which forms the foundation

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of the appeal herein depends, a corporation known as Fry Bros. Contracting Company entered into a contract with the street superintendent of the city of Venice for the improvement of a street located in said city, known as Venice Boulevard. Thereupon the contractor filed the required bond for the benefit and protection of persons who might perform labor for, or furnish materials to, the contractor, to^ be used in the performance of the work in question. Thereafter the contractor entered into an agreement with the appellant Southern Securities Company by which, for certain consideration moving to it, the latter corporation agreed to furnish directly to the contractor certain moneys to be used by him in financing the job. In the course of the performance of the work incident to the contemplated improvement, the contractor became indebted to the plaintiff Gladding, McBean

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Company on account of certain materials furnished by said plaintiff to the contractor ' and which materials were used in the construction of the said improvement. The said debt not having been paid, and the time being about to expire within which, by the filing of a “stop notice”, the plaintiff might protect its interests in the premises and probably insure the payment of the debt under the provisions of the contractor’s bond, the plaintiff approached the defendant Southern Securities Company with a view to having the latter pay the debt for the contractor in accordance with the authorization so to do under the provisions of the financing agreement to which reference has been had; in pursuance of which, at defendant’s request, at a time preceding by thirteen days the date of expiration of the time within which the plaintiff might have filed its said “stop notice”, the plaintiff procured from the contractor an order expressed in the following words:

“Please pay to Gladding, McBean & Co., the sum of $1353.35, this being in full of their account for material furnished on our Venice Job”; and which order, on at least two occasions prior to the expiration of the time allowed by law within which a “stop notice” might have been filed by tlie plaintiff, the defendant agreed to accept. The evidence adduced on the trial of the action warrants the conclusion reached by the trial court that in violation thereof, both as to the date of its execution, and as .to the