Los Angeles City School District v. Tucker

PRESTON (H. L.), J., pro tem. This is an appeal by defendant Southern Surety Company from a judgment rendered in favor of defendant Patten & Davies Lumber Company for the sum of $574.50, and from a judgment rendered in favor of defendant Noyes Marble & Tile Company for the sum of $264.

The facts are not in dispute and are briefly these: Lewis Tucker, a contractor, entered into a contract with the plaintiff Los Angeles City School District on the twenty-seventh day of February, 1925, for the alteration and repair of a school building in the city of Los Angeles for the contract price of $2,298. On the same day said Lewis Tucker as principal and appellant Southern Surety Company as surety executed a bond in the sum of $1,149, being fifty per cent of the contract price, in compliance with the requirements of the act of 1919 (Stats. 1919, p. 487), entitled “An Act to secure the payment of the claims of persons employed by contractors upon public works, and the claims of persons who [392]furnish materials, supplies . . . used or consumed by such contractors in the performance of such works, and prescribing the duties of certain public officers with respect thereto. ’ ’ This bond, by its terms, inured to the benefit of persons who furnished materials and performed labor on' said school building. After the execution of said bond the said Lewis Tucker entered upon the performance of said contract. Among the persons furnishing materials were Patten & Davies Lumber Company and Noyes Marble & Tile Company, defendants and respondents herein.

The contract was completed by Tucker on the thirtieth day of April, 1925, and within ten days thereafter, to wit, on the 9th of May, 1925, notice' of completion was recorded in the office of the county recorder of Los Angeles County. The balance of the contract price due Tucker at the time of the completion of the building was $574.50.

On May 20, 1925, a writing was filed with the board of education, signed by Lewis Tucker, reading as follows:

“Los Angeles, Cal., May 20th, 1925.

“Mr. C. F. Lenz, Auditor

“L. A. Board of Education.

“Dear Sir:

“I hereby authorize you to deliver my warrant for the sum of $574.50, which is the 35-day payment for alterations to the old building at the Normandie Avenue School House, to Patten & Davies Lumber Co., this money being due them for material supplied by them for above mentioned work; said payment being due June 5th, 1925; when said warrant is ready for delivery I will endorse same to Patten & Davies at your office. Please notify me.