Nelson v. Trounce

WILBUR, J.

This action was begun by the plaintiff to recover upon a bond given by the defendant, Chicago Bonding & Surety Company, for the payment of laborers and materialmen upon a contract for the building of Garfield school, executed by the board of education of the San Diego school district as owner with the defendants Harry D. Trounce and William Stoecker, copartners. The defendant Bonding Company having been sued in a number of actions by materialmen, and laborers, asked that all these actions be consolidated and that the parties be required to file their claims by way of cross-complaint in this action. The court made such an order and the various parties filed their cross-complaints, whereon judgments aggregating $12,293 were rendered, from which the Bonding Company appeals.

The contract price for the erection of the school building was $38,440. The bond in accordance with the statute was for half that amount, or $19,220. The bond is in the usual form, recites the giving of the contract and the amount thereof, and in the condition thereof is the following: “Now, therefore, if the said principals fail to pay for any materials

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or supplies furnished for the performance of the work contracted to be done, or for any work or labor done thereon of any kind, we, the said surety, will pay the same in an amount not exceeding the sum specified in this bond, to wit: the sum of nineteen thousand two hundred and twenty dollars ($19,220.00), which said sum is one-half of the contract price of said work, provided that all such claims shall be filed as required by section 2 of an act of legislature approved March 27th, 1897, entitled £An act to secure the payment of the claims of materialmen, mechanics, or laborers employed by contractors upon state, municipal, or other public work, ’ in pursuance of which enactment, as amended by an act approved May 1st, 1911, the foregoing bond is given.” The contractors abandoned the work on the 15th of March, 1915. Work ceased upon the building for more than thirty days, and thereafter the board of education completed the work, the building being fully completed October 18, 1915. At the time the contractors abandoned the work they had been paid seventy-five per cent of the value of the work and labor done and the building was forty-eight per cent completed. The difference between the value of the building estimated according to contract rate and the amount paid to the contractors at the time of its abandonment was $4,612.80.