Cohn v. Smith

CONREY, P. J.

The plaintiff, as owner of two lots in the city of Los Angeles, entered into a contract with the defendant Carlin G. Smith, as contractor, for the construction of a building on said lots. At the same time the contractor as

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principal, and the other two defendants as sureties, executed a bond to the plaintiff as owner. The conditions of the bond were that the contractor “shall keep and strictly perform all the covenants and agreements of the contract by him to be kept and performed and shall on or before thirty-five days after the acceptance of said building on completion of said contract cancel and release the said building and premises from all claims of liens that may have accrued against the same in and from the performance of said contract, and shall save said owner free and harmless from all damage therefrom, all as in said contract provided.” The judgment covers items allowed as damages for delay in completion of the building, and compensation on account of attorney’s fees and costs incurred by the plaintiff in actions brought for the foreclosure of certain liens growing out of the performance of the contract. From that judgment the defendants appeal.

The defendants in their answers alleged that the plaintiff was not at the time said bond was given, nor was he at any time subsequent thereto up to and including the time of bringing this action, the owner of the land on which the buildings were constructed, or of the buildings erected thereon. The court found that these allegations were not true. Appellants contend that this finding is not supported by the evidence, and that the plaintiff is not the real party in interest, and therefore is not entitled to maintain this action. At the trial of the case it was stipulated that during all of said time the record title to the property described in the contract was, by virtue of a deed from a third person, in the name of Fannie Cohn, wife of the plaintiff. The plaintiff testified that when the lots were purchased he gave his personal check for the price paid, and that his wife did not pay anything for them, and did not pay anything to the plaintiff for them when the property was placed in her name; and that he did not intend to give the property to her. He further stated that he paid for everything connected with these two buildings and that she did not pay anything for their construction.