91 Cal. 234 | Cal. | 1891
On October 14, 1887, the plaintiff and the defendants Allspaugh and Hall entered into a contract whereby said-named defendants agreed to construct a house for the plaintiff, and furnish all materials therefor, and on the following day, and before the commencement of work under the building contract, they executed to plaintiff a bond, with sureties, in these words: “ Be it remembered, that whereas, on the fourteenth day of October, 1887, Charles Kiessig, a resident of the said state and city, and A. M. Allspaugh and M. S. Hall, contractors and builders, also residents of said state and city, entered into a contract whereby, for a certain valuable consideration, the said A. M. Allspaugh and M. S. Hall,
Neither this bond nor the building contract therein referred to was recorded. The contractors, however, completed the building according to the specified plans, and plaintiff paid them the full contract price therefor; but there were liens filed against it to the amount of $1,817.25, which the contractors, Allspaugh and Hall, failed to discharge, and the plaintiff was compelled to satisfy them.
This action is brought on the foregoing bond to recover the amount so paid. The court below found the facts as above stated, and rendered judgment in favor of plaintiff. This appeal is from that judgment, and is taken by the defendant Hall alone.
The appellant contends that there can be no recovery on the bond, because of the failure to record the building contract to which it refers; that the original contract being void under the statute, this bond, which was given to secure in part the performance of such contract, is equally void, and incapable of enforcement. This contention is based upon section 1183 of the Code of Civil Procedure, which provides that a building contract which is not recorded before work is commenced thereunder, when the contract price exceeds one thousand dollars, “ shall be wholly void, and no recovery shall be had thereon by either party thereto.”
But the bond upon which this action is brought is not
We do not think that the appellant, after delivering this bond as an independent security, and thereby inducing the plaintiff to make full payment of the contract price for the construction of the building, is in a position to deny his liability upon it; and if, in order to support this action, it is necessary that the bond should be based upon a valid building contract, we should hold that the appellant is estopped to dispute the truth of the particular recital contained in the bond as to such fact.
Judgment affirmed.
Sharpstein, J., and McFarland, J., concurred.