Blackwood v. McCallum

SHURTLEFF, J.

This is an appeal by the defendants, J. H. McCallum and E. O. Benner, from a judgment against them and their codefendant, Hansbrough-Johnson Company, the latter not joining in the appeal.

The complaint alleges that on June 5, 1916, the plaintiff, as owner, entered into a building contract with the defendant Hansbrough-Johnson Company, whereby the latter agreed, for the price of $9,712, to erect for plaintiff a two-story frame residence upon a lot of land in San Francisco; that to secure the performance of said contract the Hansbrough-Johnson Company, as principal, and the appellants McCallum and Benner, as sureties, executed and delivered to plaintiff a bond in the penal sum of $4,856, conditioned that said Hansbrough-Johnson Company would in all respects comply with all the terms, covenants, and conditions of said contract and furnish the materials and perform the work according thereto, free of liens or claims arising out

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of materials furnished or work performed thereunder; that said bond further stipulated that, in the event of any liens being filed upon the building or land upon which it was erected, arising from the performance of the work or furnishing of the materials, or in the event of plaintiff being compelled to pay any sums of money, for said work or materials, by reason of the failure of Hansbrough-Johnson Company to pay the same, then the said McCallum and Benner would repay plaintiff said sums, not exceeding the amount of the bond; that said building was completed on or prior to September 18, 1916, and that on said last-mentioned day notice of completion and acceptance was filed for record in the office of the county recorder of the city and county of San Francisco (this date is evidently a clerical error and should be December 15, 1916) ; that on January 17, 1917, two claims - of lien against the building and land for materials furnished and used in the construction of said building were filed for record and actions were commenced to foreclose them; that in each of these actions the plaintiff and Hansbrough-Johnson Company were named as defendants and were respectively served with the summons and a copy of the complaint in each of them; that the plaintiff appeared and answered in each action; that HansbroughJohnson Company made no appearance in either of said actions; that the actions were consolidated and tried; judgments rendered in favor of the claimants, the liens- foreclosed and the property ordered sold; that plaintiff was compelled to pay $250 for the services of attorneys in defending said actions; that prior to the commencement of said actions to foreclose said liens plaintiff had paid the defendant Hansbrough-Johnson Company all sums due and owing by him to said company for the work, labor, and materials furnished by it in the construction of said building, “save and except the sum of $746.30, which sum constituted a fund in plaintiff’s possession applicable to the payment