Summers v. L. F. S. Syndicate

CONREY, P. J.

Following an order which sustained the demurrer of defendants to the second amended complaint without leave to amend, the court entered judgment dismissing the action, from which judgment the plaintiff has appealed.

On the fourth day of February, 1914, the plaintiff Summers, as owner, and the defendant L. F. S. Syndicate, as contractor, entered into a contract for the construction of a two-story residence building and a cottage on two adjoining lots of the plaintiff in the county of Los Angeles. On the same day the contractor, as principal, and the defendants McLeod and Elliott, as sureties, executed a contractor’s bond to secure the faithful performance of its agreement by the contractor. It was provided in the bond “that if said principal shall in any manner default in the performance of any matter or thing in said contract specified to be by said principal performed, or in the event of said principal abandoning the work provided by said contract to be done by said principal, the obligee shall immediately so notify the sureties and thereafter the sureties shall have the right at their option to assume and sublet said contract and to proceed thereunder as if no default or abandonment had occurred.’-’ In this action the plaintiff seeks to recover on the bond in the sum of one thousand eight hundred dollars damages suffered by plaintiff by reason of failure of the

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contractor to comply with the terms of the contract. The complaint duly sets forth the execution of the contract and undertaking. It is then alleged that in constructing said buildings the contractor did not furnish the quality and quantity of material provided for, and did not construct the buildings in a good, substantial and workmanlike manner, and did not perform the contract according to agreement in sundry particulars which are set forth in detail. These details include many items which amount to more than trifling imperfections in the structure and which necessarily imply substantial defects in the buildings as constructed. It is then alleged that on or about April 27, 1914, the contractor represented to the plaintiff that the buildings were completed and requested the plaintiff to file the notice of completion provided for in section 1187 of the Code of Civil Procedure; that plaintiff informed the defendant that there appeared to be some imperfections and some things lacking of the completing of said buildings, and the defendant thereupon represented that said imperfections were but trivial, and agreed that the said imperfections should and would be corrected by the defendant with due diligence, and that the filing of such notice of completion would not be deemed an acceptance of the buildings as to such trivial imperfections, nor as to any defects or imperfections which might thereafter appear; that plaintiff relied upon such representations by the defendant and the agreement aforesaid, and did on the first day of May, 1914, cause the notice of completion to be filed of record; that all of the imperfections and defects set forth in the complaint appeared after the filing of the notice of completion; that by reason of these facts the defendants are estopped from claiming or asserting that the filing of the notice of completion was an acknowledgment of the full performance of the contract or that plaintiff has accepted said buildings as fully completed according to the terms and conditions of the contract; that none of the imperfections and defects above set forth have been corrected and the same continue to exist. The contract provided that if, at any time, the owner shall be dissatisfied with any particular feature of the work done upon the buildings, “she shall report the same to the contractor, and any payment thereafter due, and paid under the terms hereof to said contractor,