S. W. Towle Lumber Co. v. Anderson

[373]

LANGDON, J.

This appeal is by the defendant Maryland Casualty Company, surety on a contractor’s bond, from a judgment rendered against it in favor of plaintiff, who had furnished materials used in the erection of a building in the city and county of San Francisco.

The complaint was in the usual form for the foreclosure of a mechanic’s lien, and joined, as defendants, the owner of the building, the contractor and the surety. The action was dismissed before trial as to the owner, the contractor defaulted and the case was tried against the surety alone, the appellant here. The surety denied the corporate existence of plaintiff, upon information and belief, which was the manner in which all the denials of the answer were made.

The complaint having alleged that the plaintiff was at all of the times referred to therein a corporation duly organized and existing under and by virtue of the laws of the state of California, denial of this allegation, upon information and belief was insufficient to raise an issue.

(Art Metal Construction Co.

v.

A. F. Anderson Co.,

182 Cal. 29 [186 Pac. 776].)

During the course of the trial, the defendant made a motion asking that it be permitted to amend its answer so as to deny, directly, the allegations of the complaint with reference to incorporation. The court denied the motion, in the exercise of its discretion, stating in effect that, if any defect in the corporate organization existed, it did not go to the merits of the claim, and since it had been waived by the failure to deny the allegations of the complaint with reference thereto, the plaintiff would not be put to its proof on that issue. This ruling is one of the assignments of error upon the appeal, and we think appellant’s objection thereto is without merit. Defendant waived objection to plaintiff’s capacity to sue because it was not made in the answer. (Secs. 433 and 434, Code Civ. Proc.) In the case of

Kehrlein-Swinerton Construction Co.

v.