Kiessig v. Allspaugh

De Haven, J. On October 14, 1887, the plaintiff and the defendants Allspaugh and Hall entered into a contract whereby said-named defendants agreed to construct a house for the plaintiff, and furnish all materials therefor, and on the following day, and before the commencement of work under the building contract, they executed to plaintiff a bond, with sureties, in these words: “ Be it remembered, that whereas, on the fourteenth day of October, 1887, Charles Kiessig, a resident of the said state and city, and A. M. Allspaugh and M. S. Hall, contractors and builders, also residents of said state and city, entered into a contract whereby, for a certain valuable consideration, the said A. M. Allspaugh and M. S. Hall, [236]builders and contractors, have to build, construct, and finish a certain house, as is more fully set out and described in the contract, plans, and specifications signed and entered into on the day and year first aforesaid, all of which said contract, plans, and specifications are made a part hereof, — now, therefore, we, A. M. Allspaugh and M. S. Hall as principals, and H. V. Poser and N. P. Lundeen as sureties, bind ourselves, our heirs, executors, and successors, in the sum of five thousand dollars, to forever save and hold harmless the said Charles Kiessig against any claims, demands, or liens, of all characters whatsoever, for material or labor expended or used in the building, construction, and finishing said house.”

Neither this bond nor the building contract therein referred to was recorded. The contractors, however, completed the building according to the specified plans, and plaintiff paid them the full contract price therefor; but there were liens filed against it to the amount of $1,817.25, which the contractors, Allspaugh and Hall, failed to discharge, and the plaintiff was compelled to satisfy them.

This action is brought on the foregoing bond to recover the amount so paid. The court below found the facts as above stated, and rendered judgment in favor of plaintiff. This appeal is from that judgment, and is taken by the defendant Hall alone.

The appellant contends that there can be no recovery on the bond, because of the failure to record the building contract to which it refers; that the original contract being void under the statute, this bond, which was given to secure in part the performance of such contract, is equally void, and incapable of enforcement. This contention is based upon section 1183 of the Code of Civil Procedure, which provides that a building contract which is not recorded before work is commenced thereunder, when the contract price exceeds one thousand dollars, “ shall be wholly void, and no recovery shall be had thereon by either party thereto.”