Cooley v. Freeman

PRESTON, J.

Respondent, as a subcontractor, furnished material and performed labor which was utilized in the construction of a portion of the state highway in San Mateo County. The item here in dispute relates to what is known as an “overhaul charge”—a charge of so much per cubic yard for hauling material for “shoulders” or elevated borders along said highway when finished, such hauling being from a place without the right of way and more than three hundred feet from a certain point in the zone of use. In default of payment respondent sued the contractor and his surety for the disputed item and recovered judgment against both of them, from which they have both appealed.

In this connection it should be noted that no showing for reversal of the judgment as to the contractor is made. The amount of the item, if legal, is likewise not in dispute. The surety, American Indemnity Company, a corporation, urges, however, that the contract between the California highway commission and the contractor is the measure of its liability, and as the claim of respondent would not be allowable under that contract, if made by the contractor, it necessarily cannot be allowed against it wh.en made by the respondent in this action. No time need be spent in ascertaining whether the contractor could or could not prevail as against the California highway commission, for it may be conceded, for the

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purposes of this case, that the contractor could not have recovered this item as against it.

The test of the liability of appellant surety hereunder is not what the rights of the contractor and highway commission are under the construction contract, but is: Did respondent furnish material and perform labor which was utilized in the construction work covered by the contract for public work between the highway commission and the contractor, which said work was the subject of the indemnity agreement made by appellant and sued upon herein? There is no contention concerning the affirmative answer made by the court to this inquiry. The fact also is that the work of respondent was accepted.

The liability .of the surety is controlled by the provisions of the public work statutes of 1919, chapter 303 (Stats. 1919, p. 487), as it read in 1924, the date of the contract herein. Said statute providing for the indemnity bond thereunder read in part as follows: