Fireman's Fund Indemnity Co. v. County of Sacramento

SCHOTTKY, J. Fireman’s Fund Indemnity Company has appealed from a judgment in favor of Sacramento County in an action brought by the insurance company in which it sought to have a surety bond in favor of the county cancelled on the ground that there was no contract between the obligor and the county.

In 1955 in connection with a proposed subdivision the J. & D. P. Developers, Inc., filed a final subdivision map with the Board of Supervisors of Sacramento County. Accompanying that map and as a part thereof, over the signatures of the officers of the subdivider, was the following language:

“The undersigned hereby consents to the preparation and recording of this map of Washington Heights, Unit No. 1 and offers for dedication and does hereby dedicate to any and all public uses the way, streets, and avenue shown herein. ...”

This map was accepted by the board of supervisors on August 1, 1955. At the same time a surety bond issued by the insurance company was filed with the county. At the time of acceptance the streets were not improved and the purpose of the bond was to permit the sub divider to get the subdivision map accepted before the street work was completed. No formal agreement as to the street work was ever entered into between the subdivider and the county. Section 11611 of the Business and Professions Code states that the governing body shall as a condition precedent to the acceptance of any streets require that the subdivider either improve or agree to improve the streets. Section 11612 provides that if an agreement to improve the streets is entered into the governing body may require the agreement be secured by a bond, or it may accept in lieu thereof a cash deposit. Section 5 of Ordinance Number 390 of the county of Sacramento requires that the subdivider shall agree to improve all land dedicated for streets as a condition precedent to the acceptance of the final map. It was stipulated that no work was ever done in the subdivision and it remains unimproved.

After the bond was delivered appellant insurance company sought to have it returned on the ground that the bond was issued to secure performance under a contract and since there was no contract there could be no liability under the bond.

[321]Appellant insurance company contends that there was no evidence to support the trial court’s finding that there was an express contract between the developer and the county and that there can be no obligation on its part without a principal contract or obligation.