Cunningham v. Southland Constr. Co.

FOURT, J. This is an appeal from a money judgment in favor of plaintiff and against defendant Southland Construction Co., Inc. (sometimes hereinafter referred to as South-land) and Citizens Insurance Company of New Jersey, a corporation (sometimes hereinafter referred to as Citizens), the bondsman for Southland.

Cunningham brought the action for money, for the value of materials furnished to Southland on a job in the construction of a warehouse which Southland was performing for the County of Los Angeles. In count one of the complaint plaintiff alleges that in February 1963, Southland promised to pay Cunningham certain money for goods and merchandise sold to Southland; that Southland had refused to pay. The first cause of action is stated as a common count for material delivered and is not on a written contract.

In a second count of the complaint, plaintiff sued Citizens on the bond which Citizens had issued to the County of Los Angeles for Southland.

In the third count, plaintiff alleged that the County of Los Angeles was withholding sufficient money to pay plaintiff’s amount due and owing.

Southland answered the complaint by generally denying the allegations of Cunningham and by way of defense alleged that a contract had been entered into with Cunningham to “construct” a building for it and that Cunningham did not have a contractor’s license and that said contract is void. Further, by way of a counterclaim Southland aserted that Cunningham was indebted to it in the sum of $1,500 for materials and labor furnished to Cunningham on another unrelated job.

Hartford Accident and Indemnity Company, Inc., admitted that it did execute a bond, the terms of which were contained in the bond. Apparently a stipulation was entered into at the trial to the effect that Citizens was to be substituted in the place of Hartford for all purposes.

The county admitted that it had on hand a sum of about $1,600.35 which would be available for payment of the balance due because of the indebtedness in the construction of the building.

[724]Cunningham, who from time to time was a dealer for Strand steel used in the construction of steel buildings, made an oral contract with Southland to furnish certain materials to be used by Southland in a contract which Southland had with Los Angeles County for the construction of a warehouse building at the Olive View Hospital. In the contract proceedings, Southland, as principal, and Citizens, as surety, made, executed and delivered to Los Angeles County a bond in the principal sum of $7,946.50.