138 Cal. App. 319 | Cal. Ct. App. | 1934
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
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
It was admitted by plaintiff that the work to be done under the contract was completed June 1, 1931, and it was stipulated that plaintiff, between April 1 and April 18, 1931, furnished and sold to the trenching company materials actually used by it in such work, of the reasonable and agreed value of $2,249.90, no part of which was paid. Judgment was given for said amount.
The sole question involved in this appeal is: Was such bond a contract expressly made for the benefit of respondent? If so, it could be enforced by it.
The language of the contract as well as the bond, in our opinion, shows clearly that no attempt was made to furnish a statutory undertaking under section 1183 of the Code of Civil Procedure. The one in question is a common-law bond, and on its face seems to be solely for the protection of the water company, with reasonable requirements for the protection of the surety. There is nothing in the contract referred to in the bond requiring the contractor to pay for materials furnished in doing the work. Neither does the bond upon its face purport to secure such payment, nor is it conditioned upon the faithful performance of all of the covenants and agreements of the contract. Furthermore, respondent’s name is not mentioned therein except for the purpose of securing to the water company the discount of two per cent, which of itself implies that the water company as well as appellant expected the contractor would pay cash for the pipe to get such discount. The contract requires the contractor to furnish public liability insurance and to guarantee the work for a period of one year; yet the bond excludes liability on account of either, so far as appellant
Under such circumstances can it be said that the bond was made for the express benefit of anyone except the obligee therein named? Appellant says no. Respondent says yes, and points to the case of Pacific States Electric Co. v. United States F. & G. Co., 109 Cal. App. 691 [293 Pac. 812], and cases cited. The test for determining whether or not a contract may be said to be expressly made for the benefit of another is laid down in the case of Ryan v. Shannahan, 209 Cal. 98, 104 [285 Pac. 1045], where the court says, quoting from the case of French v. Farmer, 178 Cal. 218 [172 Pac. 1102]: “If it can fairly be said from either the contract or the bond, which are to be construed together, that the parties intended to and did agree to pay such third person, a suit could be brought on such bond by such third person to recover upon the promise so made for his benefit. ’ ’
The contracts in the cases relied on by respondent bound the contractors to furnish the necessary labor and materials for the respective jobs. The courts substantially held that there was necessarily implied therefrom the promise to pay for such labor and materials, and the bonds, guaranteeing as they did the faithful performance of all the covenants and agreements of such contracts, became a part thereof and covered such implied promise, and inured to the benefit of the person furnishing labor, etc. In the instant case the proposal of the contractor is to “furnish and install the pipe for the proposed water lines”. Undoubtedly under such proposal it would be implied that it would pay for the pipe, although there is no express promise so to do. Turning to the bond involved here, however, we do not find a guarantee on the part of the surety that all the covenants and agreements of the contracts will he performed, but only the undertaking that the contractor “shall faithfully perform the work contracted to he performed”. We find nothing in the bond indicating that it was the intention or agreement of the surety to guarantee anything to the contractor, nor can we read any such agreement into the plain language used in the bond. The securing of the pipe was a duty placed wholly upon the contractor; and when the pipe was furnished and the work completed, every require
The court in the instant case made findings of fact and a conclusion of law. Both are contrary to the conclusions reached by us here. Because all of the material facts affecting appellant were either admitted by the pleadings or stipulated, no findings were necessary.
Under the authority of section 956a of the Code of Civil Procedure it is ordered that the findings of fact and conclusions of law herein, so far as they affect appellant, be and they are vacated and set aside. The judgment against appellant is reversed and the trial court is instructed to enter a judgment in its favor.
Stephens, P. J., and Craig, J., concurred.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 25, 1934.
