99 Cal. 452 | Cal. | 1893
Lead Opinion
The plaintiff in this action seeks to recover $1,807.25 upon a building contractors’ bond executed to him by the defendants Allspaugh and Hall as principals, and by the defendant Lundeen as surety. The bond sued upon was executed on October 15, 1887, and after reciting the fact that . the principals therein had upon October 14, 1887, entered into
It is provided by section 1183 of the Code of Civil Procedure that all contracts for the construction of buildings, when the amount agreed to be paid therefor exceeds $1,000, shall be in writing and filed in the office of the recorder of the county where the property is situated before work is commenced under the contract; and if not so filed with the recorder “they shall be wholly void, and no recovery shall be had thereunder by either party thereto.” The section further provides that in such case the labor and materials of all persons except the contractor “shall be deemed to have been done and furnished at the personal instance of the owner, and they shall have a lien for the value thereof.”
The appellant Lundeen claims that the bond sued upon in this action is dependent upon the contract referred to therein, and that, as this contract is wholly void under the provisions of section 1183 of the Code of Civil Procedure just cited, because not filed with the county recorder, the bond is void also. The point thus presented was decided adversely to the contention of appellant in the case of Kiessig v. Allspaugh, 91
The bond was executed in view of the fact that the contractors were about to commence the erection of a house for plaintiff in accordance with the written contract mentioned in the bond, and the sole purpose of the bond was to protect the plaintiff against the consequences of a failure of the contractors to pay the personal obligations which they might incur for labor and materials, in the event that they actually constructed for him the building referred to in the contract, and it is the duty of the court to enforce it according to its terms.
The case of Schallert-Ganahl Lumber Co. v. Neal, 90 Cal. 213, cited by appellant, does sustain his contention, but, upon a more careful consideration of the question therein decided, we are not satisfied with the conclusion reached in that case.
Judgment and order affirmed.
Fitzgerald, J., and Beatty, C. J., concurred.
Concurrence Opinion
I concur in the judgment and the opinion of Mr, Justice De Haven, except that I think the case distinguishable from that of Schallert-Ganahl Lumber Co. v. Neal
Garoutte, J., and Harrison, J., dissented.