Hillcrest Co. v. Shrier

CONREY, P. J.

Several actions were brought for the foreclosure of numerous lien claims incurred during the performance of a contract between the defendants Blanche L. E'hrenberg and Clara Shrier, as owners, and defendant W. B. Johnson, as contractor, for the construction of a flat building and garage in the city of San Diego. The contractor, together with the appellant Bonding Company, executed to the owners an undertaking in the sum of five thousand dollars, conditioned for the performance of the contract by the contractor, and that he would finish and deliver the work free from all liens and pay in full all the claims of any person performing labor or furnishing materials to be used in the work. Both contract and bond were dated on the twentieth day of May, 1913. The bond further contained the terms provided for in section 1183 of the Code of Civil Procedure, as amended in 1911, (Stats. 1911, p. 1313). It complied with the requirements of that section, with the exception that the bond was for only the sum of five thousand dollars, which was less than fifty per cent of the contract price.

[626]

The court found that the owners fully performed their . part of the contract and that they paid out for the construction of the building the full sum of $12,450, which was the contract price, and the further sum of $193 for •additional work not provided for in the contract; that¡the contractor failed to pay the sum of $5,093.41, due to the several plaintiffs for materials used and labor done upon said building. The several actions having been consolidated prior to the trial, the court, pursuant to the findings made, rendered judgment in favor of the plaintiffs against the owners for the several sums claimed, amounting in - the aggregate to more than five thousand dollars, and for the foreclosure of their liens against'the property of the defendant owners, and further rendered judgment in favor of the owners against the defendant Bonding Company in the sum of five thousand dollars, with costs. From the judgment rendered against it the Bonding Company prosecutes this appeal.

The appeal is presented upon a record certified to contain a full copy of the judgment-roll, except the pleadings relating to that portion of the action and judgment from which no -appeal is taken, and that portion of the findings ' of fact which relates to that part of the judgment from which no appeal is taken.