Hollywood Wholesale Electric Co. v. Jack Baskin, Inc.

SHINN, P. J. This is the second appeal in an action upon a labor and material bond executed and filed pursuant to sections 4200 and 4207 of the Government Code, for the payment of the reasonable value of electrical materials allegedly furnished for and used in the construction of school buildings at the Colfax Avenue School site in Los Angeles. The action [401]is against Jack Baskin, Inc., as principal, and Seaboard Surety Company, as surety.

Defendants had judgment at the first trial. That judgment was reversed by this court. (See Hollywood etc. Co. v. John Baskin, Inc., 121 Cal.App.2d 415 [263 P.2d 665].) At the second trial, plaintiff recovered judgment for $8,000.23. The court likewise awarded plaintiff accrued interest totalling $3,016.78 and $4,000 as an attorney’s fee. Defendants appeal from the judgment. They contend the evidence was insufficient to support the findings, that the court erred in awarding plaintiff an attorney’s fee which took into account services rendered at the first trial, and that plaintiff is not entitled to recover interest which had accrued prior to the judgment.

This opinion must be read with our opinion on the prior appeal. We will summarize the detailed statement of facts therein. On June 19,1950, Baskin agreed with the Los Angeles City School District to construct certain school buildings at the site of the Colfax School. Pursuant to section 4200 of the Government Code, Baskin, as principal, and Seaboard, as surety, executed and filed a labor and material bond. On the same date, Baskin contracted with W. C. Scruggs for the furnishing and installation of the electrical equipment.

Plaintiff is a supplier of electrical materials. Scruggs had done business with plaintiff for many years. Between June 28, 1950 and May 2, 1951, plaintiff sold and delivered to Scruggs various electrical materials for the Colfax School job and other jobs. Scruggs maintained a running account with plaintiff, in which charges and credits in connection with the various jobs were recorded on a single continuous series of general ledger sheets. On June 28, 1950, Scruggs owed plaintiff $14,833.49 for equipment previously furnished him on other jobs. As of December 29, 1950, plaintiff broke down the total obligations then owing by Scruggs (including the then balance on the Colfax job) and segregated each obligation to the job to which it was applicable. Scruggs’ running balance was then $35,129.19.

During the period of performance of the Colfax job, Scruggs made a number of payments to plaintiff. Only one of these, a check for $1,500, was specifically given and received on account of the Colfax job. It was held on the prior appeal that since Scruggs did not direct plaintiff to apply the other payments to the Colfax indebtedness, plaintiff was justified in applying them to extinguish Scruggs’ indebtedness with respect to the oldest items of account, and that defendants,