Woodhead Lumber Co. v. E. G. Niemann Investments, Inc.

LUCAS, J.,

pro tem.

Appellant Woodhead Lumber Company, a corporation, appeals from a judgment of dismissal entered after the court sustained the demurrer of defendant and respondent Detroit Fidelity and Surety Company to appellant’s amended complaint, without leave to amend.

The amended complaint in substance alleges that on or about December 5, 1925, defendant E. G. Niemann Investments, Inc., the owner of certain real property situate in the city of Los Angeles, entered into a contract with appellant by which it was agreed that the latter would furnish services, and materials to said defendant to be used in the construction of a building to be erected upon said real property; that appellant with the knowledge and consent of said defendant and between the dates of February 26, 1926, and April 24, 1926, furnished such materials and performed such services, the reasonable value of which was the sum of $6,443.60, but that no part thereof, other than a small sum credited for materials returned, has been paid.

[458]

•' It is further alleged that the respondent Detroit Fidelity and Surety Company, on or about January 14, 1926, entered into a contract of surety with said defendant E. G. Niemann Investments, Inc., by which contract the said surety company became bound unto the California Mortgage Company in the sum of $50,000. Portions of said bond are set out

in haec verba.

After reciting that the principal named therein, to wit, B. G. Niemann Investments, Inc., was the owner of the real property above referred to and was about to construct a three-story brick apartment building thereon and that said mortgage company had agreed to loan the said owner $50,000, taking as security a first mortgage on its property, providing a bond was furnished as thereinafter conditioned, the bond provided:

“Now, therefore, the condition of this obligation is such that if the principal (the owner) shall indemnify the obligee (the mortgage company) against any and all loss directly arising by reason of the failure of the principal to fully complete said apartment building as per plans and specifications on file with California Mortgage Company, and shall also pay in full the claims of all persons performing labor upon or furnishing materials to be used in such work, then this obligation shall be void; otherwise to remain in full force and effect.”