S. R. Frazee Co. v. Arnold

KNIGHT, J.,

pro tem

This is an appeal from a judgment of foreclosure of a materialman’s lien for materials furnished in the construction of certain apartment houses owned by the defendant and appellant, Arnold.

The defendant Joe Goetz, on January 7, 1916, contracted to perform the labor and furnish, the materials for painting and papering said apartment houses for the sum of $2,930. The contract was in writing and was duly filed for record, together with a bond furnished by the contractor pursuant to section 1183 of the Code of Civil Procedure in the sum of $1,465, which said bond by its terms inured to the benefit of laborers and materialmen. On March 16, 1916, after Goetz, the contractor, had been paid $1,430, he abandoned the contract, and the owner, Arnold, necessarily expended the additional sums of $1,363.30 for labor and $215.42 for materials in completing the job, thereby making the total cost of the work and materials covered by the Goetz contract $3,008.72, excluding plaintiff’s demand for $833.66.

Judgment was rendered against the contractor and his sureties for the amount of plaintiff’s demand, and a fore

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closure of the "lieu was decreed against the property. The owner of the property, Arnold, appeals.

Appellant contends, first, that having required the contractor, under section 1183 of the Code of Civil Procedure, to furnish and file a bond in the requisite amount, the terms of which inured to the benefit of laborers and materialmen, a recovery against him as owner should have been restricted to the amount found to be due from the owner to the contractor, and a judgment rendered against him as contractor and his sureties for the deficiency. Nothing was found to be due from the owner to the contractor, and therefore appellant claims that his property is not liable for any part of plaintiff’s demand.

By section 1183 of the Code of Civil Procedure, among other things, it is provided that if the original contract is filed for record, together with a bond of the contractor “with good and sufficient sureties,” in an amount not less than fifty per cent of the contract price, which bond by its terms inures to the benefit of laborers and materialmen, “then the court must,