Excavating Equipment Dealers, Inc. v. Aetna Casualty & Surety Co.

STURTEVANT, J.

This is an appeal from a.judgment in favor of the plaintiff in an action on a surety bond.

On September 29, 1930, the state of California, acting through the department of public works, awarded to H. H. Boomer a contract to grade and construct a certain road in Trinity County. The contract covered several parcels. After the award was made Mr. Boomer, as principal, and the Aetna Casualty and Surety Company, as surety, executed in due form the bond required by the provisions of the statute. (Chap. 321, Stats. 1925, p. 538.) At about the same time Mr. Boomer employed Bruce Markle as subcontractor to do the excavating on one parcel. About October 31, 1930, Mr. Markle had in place on the job a power shovel and commenced to execute the contract. That power shovel was owned by the plaintiff and was turned over to Mr. Markle under a written lease. Before the award

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was made to Mr. Boomer, in expectation of the business, Mr. Maride had entered into oral negotiations for the rental of the shovel and after the award was made the written lease was executed October 14, 1930. Before employing Mr. Maride, Mr. Boomer had a conversation with him regarding his equipment, finances and ability to execute the contract if a subcontract was awarded to him. Mr. Maride stated that he had a shovel and two trucks. In reply to Mr. Boomer’s question he stated that he was the owner of the shovel but that it was not wholly paid for. Mr. Boomer made no inquiry as to who was Mr. Marble’s creditor or the amount of the indebtedness. By its terms the lease covered a term of six months and the rental provided was $600 per month to commence from the time the machine was loaded and to continue until the machine was returned to lessor’s place of business. The rent was payable on the tenth day of each calendar month, but the plaintiff consented in a letter of even date that the first month’s rent might be postponed for thirty days. When the first rent became payable the plaintiff rendered its bill therefor to Mr. Marble and monthly thereafter. The excavation under the main contract was completed by the end of December or the first part of January. Some extra work was ordered by the state officials which Mr. Boomer turned over to the subcontractor and the extra work was done by him. All work was completed in February, 1931. A stop notice in due form was served by the plaintiff on March 6, 1931. In that notice the plaintiff claimed rental at $500 per month for four and one-half months in the total sum of $2,250. Thereafter the plaintiff commenced this action. The defendants answered separately. The action was tried before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiff and from the judgment thereon the defendants have appealed.