222 P.2d 846 | Cal. Ct. App. | 1923
For the purposes of this appeal the above cases are consolidated and heard as one. The plaintiffs in the two cases began their actions to recover on a certain bond given to secure payment for materials furnished and work done on a certain school building about to be erected by F. H. Shackelford, one of the defendants, for the Saucelito School District, said bond being dated the twenty-third day of September, 1920. The defendants, Retherford and Swanson, the sureties on said undertaking or bond, had judgment and from this judgment the plaintiffs appeal.
It appears from the transcript that F. H. Shackelford, a contractor, on the twenty-third day of September, 1920, entered into a contract with the board of trustees of the Saucelito School District in the county of Tulare for the erection of a certain school building; that upon this day there was made, executed, and delivered to the board of trustees of said Saucelito School District a bond signed by the defendants Retherford and Swanson in the following words and figures, to wit:
"Know all men by these presents: That F. H. Shackelford (contractor) as principal, and B. F. Retherford and J. E. Swanson as sureties, are held and firmly bound unto any and all persons performing labor upon or furnishing materials to be used in the work described in the building contract hereinafter mentioned or in any modification thereof, in the sum of sixty-one hundred ninety-one and 25/100 dollars, lawful money of the United States, for which payment well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. *752
"Signed and sealed with our seals, and dated the 23rd day of September, 1920.
"The condition of the above obligation is such, that
"Whereas, a certain building contract, dated September 23rd, 1920, was made and executed by board of trustees of Saucelito School District, as owner, the party of the first part therein, and the above named F. H. Shackelford as contractor, the party of the second part therein, which contract is hereby referred to; and
"Whereas, in and by said building contract, said contractor agreed to furnish the necessary labor and materials to complete the work described in said contract, upon the real property therein mentioned, in accordance with plans and specifications referred to in said building contract, and for the contract price therein set forth;
"Now, therefore, should said F. H. Shackelford, contractor, well and truly pay or cause to be paid all claims against him, for such labor or materials, or either or both, so performed or furnished, as the case may be, then this obligation to be null and void; otherwise, to be and remain in full force and effect, and the same is hereby expressly made to inure to the benefit of any and all persons who perform labor upon or furnish materials to be used in the work described in the said contract, or in any modification thereof; and any and all such persons shall have and are given a right of action to recover upon this bond against the said principal and sureties, or either of them, in any suit brought to foreclose mechanics' liens, which may be filed by such persons, or any of them, upon the property mentioned in said contract, or in a separate suit brought upon this bond, and may recover in such action or actions, the value of such labor done or materials furnished, or both, not exceeding, however, in the aggregate of said recoveries, the amount of this bond as above specified.
"B. F. RETHERFORD. (Seal) "J. E. SWANSON. (Seal)"
[1] The contract for the erection of the school building and the bond just referred to appear to have been signed and delivered on the same day. On the sixteenth day of April, 1921, the contract and bond were recorded in the office of the county recorder of Tulare County. The amount of the bond is exactly one-half of the amount of the contract *753
price for the erection of the school building. The contractor failed to complete the building; failed to pay for all the materials furnished and work and labor performed and this action was begun by the plaintiff against the defendant upon the bond referred to, to recover the amount due for work and labor performed and materials furnished. The court found that the bond in question was given under the provisions of the act approved May 10, 1919, known as the Public Works Act; that plaintiffs had failed to file a statement of their claims within the time provided by section 2 of said act and also had failed to institute this action within the time provided by said section 2 and, hence, that the cause of action against the defendants was barred. It is admitted that if the Public Works Act applies to this case the judgment in favor of the defendants should be affirmed. On the part of the appellants, however, it is contended that section 1183 of the Code of Civil Procedure applies and, hence, that the action is not barred; and that the plaintiffs are entitled to judgment. As heretofore stated the court found that the Public Works Act applies and not section 1183 of the Code of Civil Procedure. The bond in question is phrased very similar to the provisions of section 1183 of the Code of Civil Procedure, and also to the wording of the Public Works Act. In the case of Miles v. Baley,
"Furthermore, the bond especially refers to the building contract, makes it a part and the consideration for the execution of the bond. (Martin v. McCabe,
"It is obviously not necessary that the bond should expressly refer to the statute in order to constitute it a statutory bond. A bond, though not in the words of the statute requiring it to be given, if its substance and legal effect is the same as the form prescribed by such statute, is a statutory bond. (McCracken v. Todd,
Whether the failure of the contractor to execute the bond in any way affects the validity of the instrument need not be considered because of the fact that the bond in question fails to comply in this respect with the provisions of section 1183 and also the provisions of the Public Works Act, as heretofore stated, and, therefore, does not indicate anything as to the act under which the bond was executed.
Being of the opinion that the principles set forth in the case of Miles v. Baley are applicable to the case at bar and that the trial court was justified in holding that the bond in question was given under the terms and provisions of the *757 Public Works Act, the judgment of the trial court must be affirmed, and it is so ordered.
Hart, J., and Finch, P. J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 11, 1924.