172 P. 1102 | Cal. | 1918
The defendant, National Surety Company, appeals from a judgment in favor of plaintiff upon a common-law bond executed by the defendant to the Grand Canyon Railway Company, conditioned upon the faithful performance of "all the stipulations and agreements contained in" a contract entered into between defendant Farmer and said Railway Company, on the part of said Farmer to be performed and observed, and further conditioned that said Farmer "shall well and faithfully pay all laborers, mechanics, and materialmen, and persons who shall supply such contractor with provisions or goods of any kind, all just debts due to such persons, or to any others to whom any part of such work is given, incurred in carrying on such work." The contract between Farmer and the Railway Company was for the construction of a wagon road in the Grand Canyon, Arizona, upon the property of the United States government. This contract provided, among other things, that "the contractor shall promptly pay all subcontractors, materialmen, laborers, and other employees as often as payments are made to him by the company, and shall deliver said work free from any claim or lien on account of such labor and materials and subcontractors; . . ." The form of the bond was identical with that set out in the opinion in the case of the National Bank ofCleburne v. Gulf etc. Ry. Co.,
The plaintiff, French, by contract in writing, leased to the defendant, Farmer, the contractor, to be used in the performance of the latter's contract with the Railway Company, thirty-two head of mules, one saddle-horse, and sixteen sets of harness. He also agreed to furnish a "corral boss," to be paid by Farmer. Farmer having failed to pay therefor, this action was brought by French against Farmer and the Surety Company to recover four thousand two hundred dollars rental for the use of the *220
teams and saddle-horse; $10 for services of corral-man, and $5 for expenses of corral-man, and $75 for hay and barley sold. Judgment was rendered against defendant Farmer and the defendant Surety Company. The appeal is by the Surety Company only. It is claimed that there is not sufficient privity between the defendant Surety Company, as obligor of the bond, and the plaintiff to authorize suit by him upon the bond. That point, however, has been determined adversely to appellant's contention by this court in Union Sheet Metal Works v. Dodge,
As to the items of $10, services of corral-man, and $5, traveling expenses of corral-man, under the contract between French and Farmer the corral-man was to have been paid by Farmer. Even if we assume that the corral-man was a laborer upon the work within the meaning of the contract and bond, it does not follow that the plaintiff, upon paying such laborer, was entitled to sue therefor upon the bond. The right of action, if any, was in the corral-man and not in his employer, who was not a subcontractor.
As to the judgment for $75 for hay and barley sold, there was no express agreement contained in the contract for the payment for either "provisions or goods," although the bond *221
is expressly conditioned upon the payment of all just debts incurred therefor in carrying on such work. The question is, then, squarely presented, whether or not there can be a recovery upon the bond based upon the condition thereof by a third person not a party thereto, where the bond does not by its terms expressly inure to the benefit of such third person, and the right to sue thereon is based entirely upon the theory that the third person is entitled to sue upon a promise made for his benefit. The supreme court of Texas, upon a bond identical in form, held that the surety could not be sued thereon by a third party. (National Bank of Cleburne v. Gulfetc. Ry. Co.,
The lower court is directed to modify the judgment by striking out all items therefrom save and except the item of $75 for goods and provisions, and as so modified the judgment is affirmed.
Melvin, J., and Victor E. Shaw., J., pro tem., concurred.