Los Angeles Lime Co. v. Withers

THE COURT.

The plaintiff, Los Angeles Lime Company, brought two actions to recover on contractor’s bonds for materials furnished and used on street-grading contracts, alleged to have been executed by one H. C. Withers and the sureties named, under the Street Improvement Act of 1913 [Stats. 1913, p. 954], In each case the materials were furnished to H. C. Withers. The contracts were with the city of Los Angeles and were executed in the name of H. O. Withers, as contractor, and the statutory bonds sued on here were executed in the name of H. 0. Withers as principal, with defendants Martha McLain and Katherine Ludwig as sureties in one instance and defendants James M. Wads-

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worth and John Hayes as sureties in the other, but suit is brought upon them naming H. C. Withers as principal.

The name of H. 0. Withers was signed to both contracts and both bonds by H. C. Withers. It does not appear from either the pleadings or the findings of the court that this was done with the knowledge or consent of H. 0. Withers, and the sureties deny in their answers, and it is so found by the court, that they, or any of them, knew that H. 0. Withers was not the real party in interest, and it is alleged and found that they signed as sureties in the belief that H. 0. Withers was the actual principal and real party in interest on both the contracts and the bonds. This finding is sufficiently sustained by the evidence.

In reality, H. C. Withers was the real party in interest, and executed these instruments and prosecuted the work under the contracts for his own sole benefit as is alleged in the plaintiff's pleadings and found by the court. H. 0. Withers is his son and was employed by the father on these street contracts, but had no other interest therein, and was not made a party to the actions. H. C. Withers used his name for his own personal reasons.

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We are unable to see on what theory these sureties can be held liable on a bond which they never entered into and for a principal for whom they never assumed liability. Surely, a surety has the right to choose the principal for whose obligations he becomes liable, and it is no .answer to say that some undisclosed party to the contract may be a safer risk than the ostensible one.