Crane Co. v. Borwick Trenching Corp.

ARCHBALD, J., pro tem. Appeal by the Fidelity and Casualty Company of New York from a judgment in favor of plaintiff and against appellant and its co-defendant.

The Borwick Trenching Corporation, Ltd., entered into a contract with Rubio Canyon Land and Water Association of Altadena, consisting of a proposal by said trenching company, dated March 27, 1931, and addressed to said water association, which so far as material here reads as follows: “We will furnish and install the pipe for the proposed water [321]lines on Mendocino, Lake, Calaveras and Morado streets as follows: 10-inch O. D. pipe dipped installed complete, $1.10% per foot”. This was followed by the description of three other sizes of pipe of different diameters and different prices for complete installation. The proposal then continues : “The above prices include the digging, welding, back-filling pipe, boring and tie-ins on new lines. The water company is to furnish all valves and fittings and water to backfill the ditches. . . . All permits are to be furnished by the water company. ... If bond and additional insurance is to be carried the cost of same will be paid by the water company. . . . All resurfacing of streets are [sic] to be made by the water company.” Such proposal was accepted by the water company in the following, dated April 6th: “Your bid of March 27, 1931, covering installation of pipe lines as shown on plans submitted to us is hereby accepted under these conditions. You are to furnish bond in the amount of your bid guaranteeing satisfactory completion of the work. You are to furnish insurance to cover us in the same insurance company as your own policy, this policy is to be $50,000 public liability and only for this job. You are to guarantee all work for a period of one year. All work to be done under our supervision. We are to get the benefit of Crane Company’s billing of 2% May 10th on the amount of pipe used. We will furnish state permit, county inspector, all fittings not made by welding and resurface streets.” The conditions mentioned were “accepted” by the trenching company.

The bond furnished and upon which this action is based reads in part as follows: “We, Berwick Trenching Corp., Ltd., of Downey, California, ... as principal, and the Fidelity and Casualty Company of New York ... as surety, are held and firmly bound unto Rubio Canyon Land and Water Association of Altadena, California ... in the sum of . . . ($3,200), for the payment whereof said principal and surety bind themselves firmly by these presents. Whereas, the principal has entered into a written contract . . . with the obligee for furnishing and installing 2650 feet eight-inch pipe, 650 ten-inch pipe, 250 six-inch pipe and 150 four-inch pipe . . . ; now, therefore, the condition of this obligation is such that if the principal shall faithfully perform the work contracted to be performed under said contract, then