Merner Lumber Co. v. Brown

CURTIS, J.

These two actions were instituted by two separate materialmen, the Merner Lumber Company, a corporation, and The Minton Company, a corporation, to foreclose their liens against the property of the owner, Elizabeth Brown, to secure a money judgment against the

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contractor, Fred S. Wiseman, for materials used, and to enforce bond against the surety company, the Commerce Casualty Company. Subsequent to the commencement of said actions, the surety company, deeming itself liable to the materialmen under its bond, paid said claims, took from said materialmen a purported assignment of their rights as materialmen, and continued the actions in the names of said materialmen. The contractor defaulted, and the actions were not pressed against the surety company for the reason that it had, in fact, become the real party plaintiff. The actions were consolidated for trial. Judgment was rendered against the plaintiffs and in favor of the defendant owner denying foreclosure of the materialmen’s lien against the property and in favor of the plaintiffs against the defaulting contractor for the agreed value of the materials furnished. The appeal is prosecuted' by the surety company, in the name of the original plaintiffs, from the judgment denying it a lien against the property of the owner.

The facts briefly stated are these: On July 14, 1930, the owner, Elizabeth Brown, entered into a contract with Fred S. Wiseman for the construction of a house to cost $3,500. The contract was filed for record together with a surety bond in the sum of $1750', being one-half of the contract price of the house, furnished by the contractor, and issued by the Commerce Casualty Company, which was conditioned, as provided in section 1183 of the Code of Civil Procedure, for the payment of all claims of all persons performing labor or furnishing materials to be used in the construction of said dwelling-house, and which by its terms, as provided by said section 1183 of the Code of Civil Procedure, was to inure to the benefit of any and all persons who furnished materials, so as to give such persons a right of' action to recover upon said bond in any suit brought to foreclose the liens or in a separate suit brought on said bond. Thereafter it appears that on or about November 15, 1930, Wise-man abandoned the contract before the work was fully completed. The owner, after taking the matter up with the surety company, proceeded to finish the building and paid out for labor and materials an amount which, together with the amounts already paid out to the contractor, totaled the contract price of the building. The plaintiffs herein, not