Oakdale Irrigation District v. Beard

ELLISON, P. J.,

pro

tem.

The plaintiff brought this action to recover a money judgment upon a bond executed by the defendant T. K. Beard, as principal, and the defendant Aetna Accident & Liability Company, as surety therein.

The record shows that on the twenty-fifth day of February, 1913, the defendant Beard entered into a contract with the plaintiff in and by which he agreed to construct for the plaintiff .certain ditches, pipes, etc., as a part of an irrigation system belonging to the plaintiff. The work referred to was the building of the Paulsell canal, Paulsell laterals, the Orange Blossom laterals, the Grey laterals, the Clavey siphon and Booster plant, the River road siphon, and the South lateral siphon, according to plans and specifications prepared by George L. Dillman, engineer for plaintiff. The defendant Beard agreed to do said work in a workmanlike manner and to the satisfaction and approval of said engineer and of the board of directors of plaintiff “in conformity in all respects with the annexed specifications, which are hereby made a part of this contract.” The specifications were quite full and complete, and are annexed to the contract. The defendant Beard was to receive for performing the work specified in such contract a sum of money estimated to be about $85,616. Before entering upon the work he was to give a bond, to be approved by the board of directors of the plaintiff, in an amount estimated in the contract, based upon a percentage of what the work would cost as per the specifications. Having executed the contract and the bond, the defendant Beard proceeded with the construction work agreed to be done by him, and continued therein until on or about the fifteenth day of May, 1914. At that time he appeared before the board of di

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rectors of the plaintiff and expressed his desire to have the large bond which he had been carrying canceled and a new bond given in lieu thereof in the sum of ten thousand dollars and an additional payment made to him of ten thousand dollars, it being claimed by him at the time that there was something more than that amount due to him for the work performed. This proposition was accepted by plaintiff, and a new bond executed with the defendant Aetna Accident & Liability Company, as surety. The ten thousand dollars requested was paid over to him and the old bond released. The new bond, and the one upon which this suit is brought, stated quite fully the mutual understanding of the parties as to the conditions then existing. It recites that there is now due from the plaintiff to the defendant Beard on the contract, dated February 25, 1913, the sum of $11,-280; that such portions of said work as had been tested are unsatisfactory to the board and its engineer, because of small, leaks that had developed; that Beard desired a payment of ten thousand dollar's to be made to him, the balance of said contract price to be held by plaintiff until Beard should complete said, work in a workmanlike manner to the satisfaction and approval of the engineer of said district and the board of directors of plaintiff “in all respects in conformity with the specifications in the original contract.” It recited that plaintiff was willing to make said payments of ten thousand dollars upon the defendant Beard giving a new bond in the sum of ten thousand dollars “conditioned' that he will faithfully perform and complete all of said concrete pipes which* were constructed under said contract at the earliest possible moment, and that said concrete pipes will all be constructed and repaired within three months after the time of said test.” The bond was to be void if the defendant Beard complied wdth the terms and conditions of a certain resolution of the plaintiff’s boai’d of directors, passed May 5, 1914, otherwise to remain in full force and effect. The resolution referred to provides for the payment of the ten thousand dollars upon the execution of the bond conditioned as subsequently on the bond stated. Thereafter, this action was bi’ought upon the bond last referred to, it being alleged in the complaint with much fullness that the defendant Beard had failed to perform his contract and failed to complete said w'ork to the satisfaction of the board or of its engineer,