Standard Iron Works v. Maryland Casualty Co.

[601]

KERRIGAN, J.

This is an action to reform a bond and to recover against the surety on the bond as reformed the contract price for furnishing and installing an elevator.

On August 21, 1919, B. F. Decker entered into an agreement with two certain persons to repair, add to, and alter a certain building in the city of San Diego known as the French Laundry. The plaintiff, Standard Iron Works, as a subcontractor, furnished and installed an elevator in said building under a contract so to do, but was not paid therefor. A bond had been furnished to the owners of the building by B. F. Decker, the original contractor, with the defendant, Maryland Casualty Company, as surety thereon. This bond was conditioned, as required by section 1183 of the Code of Civil Procedure, for the payment of the claims of persons performing labor or furnishing materials upon said work, and it gives to such persons a right of action upon the bond directly or in any suit brought to foreclose the liens provided for by law. Said bond contains this provision: 11 That any suit brought on this bond to recover any claim hereunder must be instituted within the time allowed by law for instituting a suit to enforce a lien claim.”

The alterations and additions to the building were completed early in December, 1919, and notice of completion was recorded December 15, 1919. The plaintiff filed no lien, and brings this suit to enforce its claim against the surety on the bond, a course of procedure sanctioned in this state

(General El. Co.

v.

American Bonding Co.,

180 Cal. 675 [182 Pac. 444]).

The record does not show when the original complaint was filed, but plaintiff states that it was filed April 8, 1920, and as this statement is not denied in defendant’s reply brief we will accept it as stating the fact correctly. On September 20, 1920, the plaintiff filed an amended complaint, alleging that a mistake in the description of the premises concerned had been made by all of the parties to the bond and contract; and in addition to praying judgment for the value of the elevator furnished, asked that the bond be reformed to conform to the facts alleged.