Civ. No. 2816. | Cal. Ct. App. | May 8, 1920
Appeal by the defendants W. R. Hefley and Charles C. Hayes from a judgment entered against them as sureties on a bond given by a contractor under the street improvement law known as the Vrooman Act. (Deering's Gen. Laws, 1915 edition; Act 3930, p. 1714.) The plaintiff sued on a claim for materials furnished by it, and on two assigned claims of a similar nature, all being for materials used by the contractor in performance of the work. After the work had been actually completed, verified statements were filed with the street superintendent of the city of Whittier, with whom the contractor had made his contract, as follows: On May 24, 1916, by the plaintiff; on May 25, 1916, by plaintiff's assignor, A. H. Gregg; and on May 24, 1916, by plaintiff's assignor, C. Forsyth Son. It is claimed by plaintiff that these notices were filed in conformity with the requirements of section 6 1/2 of said statute. *410 The street superintendent accepted the work constituting said improvement on the twenty-third day of June, 1916. Additional notices of claim were filed with the street superintendent by the plaintiff and by Gregg on July 21, 1916, and by C. Forsyth Son on July 28, 1916. As to these July notices, their sufficiency need not be discussed, if the earlier notices were filed within time and in due form.
Appellants claim that all of the notices were filed more than thirty days from the time the improvement was completed, and that therefore, under the terms of said section 6 1/2, they were all filed too late, and that for that reason any right of action on said claims was lost. In the case of Pacific SewerPipe Co. v. United States F. G. Co., 32 Cal.App. Dec. 186, [
Finally, it is contended that the first set of notices and claims filed did not comply with the requirements of section 6 1/2 of the statute, because the form of verification in each of the claims was defective in that the verified statements did not contain an allegation that the plaintiff's claim, or some part thereof, has not been paid, and did not show when the various items of materials were furnished. It is also claimed that the Barr Lumber Company's claim was defective in that the affidavit of verification does not show that the verification was made by O. H. Barr on behalf of the corporation; also that the claims do not purport to hold the bondsmen responsible. The Barr Lumber Company's claim was signed, "Barr Lumber Company, By O. H. Barr, President." The affidavit of verification is signed "O. H. Barr," *412 and the said O. H. Barr, "being first duly sworn, deposes and says that he is the president of the Barr Lumber Company, the corporation claimant above named; that he has read the foregoing claim and that the facts' therein stated are true." In each of the other claims the affiant, who was one of the claimants, stated in his affidavit of verification that he had read the foregoing claim, "and that the facts therein stated are true." In each of the claims a statement of the demand was made and that the amount so claimed "is now due, owing and unpaid." The plaintiff's claim further stated that of the total amount which the contractor had agreed to pay for the materials furnished, "no part of the same has been paid," except a stated sum. The other claims filed specifically stated "that no part of the same has been paid." We think that these statements of the verified claims were sufficient to comply with the requirements of the statute. We further hold, contrary to the contention of appellants, that these claims as filed were not rendered insufficient by the statement made in each of them "that the said undersigned claims a lien upon any moneys, warrants, or bonds for the said sum as aforesaid on account of said material so furnished for said improvement." Conceding that the last-quoted words were not required to be in the notice, we cannot see that appellants, sureties on the contractor's bond, could have been in any manner misled or otherwise prejudiced thereby.
The judgment is affirmed.
James, J., concurred.
Shaw, J., concurred in the judgment. *413