Luke v. Southern Surety Co.

CRAIG (ELLIOT), J.,

pro

tem.

This is an action by a subcontractor against the surety of a building contractor on a

private

work for the value of certain materials and labor furnished and performed upon the building. The demurrer to the amended complaint was sustained without leave to amend and judgment of dismissal followed. The legal difficulties of the case arise out of the fact that the contractor’s bond for the benefit of materialmen and laborers is on the form of bond ordinarily used by surety companies on

public

works and contains the following provision: “ . . . provided that any and all claims hereunder shall be filed and proceedings had in connection herewith as required by the provisions of the Act of Legislature of the State of California designated as chapter- 303 of the statutes of 1919, approved May 10th, 1919, and any amendments thereof.” The act referred to is the Public Works Act of 1919, and requires the filing of a verified statement of the claim with the board of trustees, supervisors (etc.), or other board by which such contract was awarded, “at any time prior to the expiration of the period within which claims of lien must be filed for record, as prescribed by the provisions of section 1187 of the Code of Civil Procedure,” and further provides that “at any time within 90 days following the expiration of the period last mentioned, the person, . . . (etc.) . . . filing the same may commence an action against the surety on the bond.” (Section 2.)

The surety and the contractor had a legal right to make any bond, acceptable to the owner, they saw fit so to do, and the surety cannot be held beyond the express terms of that bond. If the bond as given did not meet the requirements of section 1183 of the Code of Civil Procedure, as that section read on April 7, 1925 (date of bond), the only penalty was that the materialmen, etc., could have liens

[729]

upon the property of the owner irrespective of contract price.

The demurrer in this case is founded only upon three specific objections, to wit: (1) that plaintiff did not file “his claim in the office of thé county recorder as required by the provisions of the Act of Legislature as set forth in said bond”; (2) that plaintiff’s claim was filed only with the contractor and “that no other or further proceedings were had by plaintiff in accordance with the Act of Legislature set forth in the bond,” and (3) “that said complaint was not filed within the time prescribed by section 1190, Code of Civil Procedure.”