San Francisco Lumber Co. v. Bibb

LORIGAN, J.

This is an action on a contractor’s bond. The bond in question, by all its provisions, and in express terms, ran in favor of the owner of the contemplated structure. It provided that the contractor should perform all the terms of a certain building contract, entered into between the owner and himself, with a liability in her favor for damages not exceeding

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twenty-four hundred dollars, with a further provision, that if he should perform his contract, the obligation of the bond should be discharged.

All these various provisions ran solely in favor of the owner of the building by name.

At the end of the bond, however, the following provision was inserted: ‘ ‘ This bond and undertaking shall inure to the benefit of any and all persons who perform labor for, or furnish material to, the said John Furness, or any person acting for him or by his authority,” and it is the effect of this general provision which is here particularly involved.

The plaintiff furnished to the contractor materials which were used in the construction of the building, and, not having been paid, brought this action on the bond to recover their value. The case was submitted to the lower court on an agreed statement of facts, and from a judgment in favor of the defendants, as sureties, the plaintiff appeals.

The respondents urge that the bond under consideration, being obviously given in pursuance of section 1203 of the Code of Civil Procedure, is void; and this contention must be sustained.

While the bond does not expressly declare that it is given pursuant to said section, the facts in the case clearly show that it was. It is alleged in the complaint (all the allegations of which in the agreed case are found to be true) that this bond “by the provisions of section 1203 of the Code of Civil Procedure . . . was made to inure to the benefit of all persons . . . furnishing materials to be used in the construction of said building.” It is conditioned in a penalty of twenty-four hundred dollars, which appears to be twenty-five per cent of the contract price, as the said section requires. The general clause in the bond under which appellant claims,—to wit, “This bond and undertaking shall inure,” etc., is a bodily excerpt from said section. The bond was filed with, and at the same time, the building contract was filed, as the section provides it must be, and the briefs of appellant discuss, and uphold it, as a bond given under such section, while at the same time claiming that if not available as a statutory bond, it is nevertheless good as a common-law obligation.