Smith v. McKnight

4 P.2d 305 | Cal. Ct. App. | 1931

So far as pertinent to our problem, the provisions of section 19 of the Improvement Act of 1911 are the following (effective in the year 1925): "Every contractor . . . to whom is awarded any contract for street work under this act, shall . . . file . . . a good and sufficient bond . . . to inure to the benefit of any and all persons . . . who perform labor on, or furnish materials to be used in said work of improvement. . . . Any laborer, materialman . . . whose claim has not been paid . . . may, at any time prior to thirty days after the recording of the assessment for said work, file with the superintendent of streets, a verified statement of his or its claim, together with a statement that the same, or some part thereof, has not been paid. At any time within ninety days after the filing of *428 such claim, the persons . . . filing the same . . . may commence an action . . . on said bond . . ." [1] Because there is neither allegation, nor proof, nor finding of fact, that plaintiff had filed his claim within the time prescribed, his judgment, recovered on a bond given under this section by the appealing sureties, must be reversed. This was the conclusion reached in Republic Iron Steel Co. v. Patillo, (1912)19 Cal.App. 316 [125 P. 923], where provisions of the Vrooman Act, in all essentials identical with the provisions quoted above, were applied. It is a conclusion further supported byMiles v. Baley, (1915) 170 Cal. 151 [149 P. 45]; San DimasQuarry Co. v. American Surety Co., (1916) 30 Cal.App. 3 [157 P. 548]; Evans v. Shackelford, (1923) 64 Cal.App. 750 [222 P. 846]. See, also, the discussion in Hub Hardware Co. v.Aetna Accident Liability Co., (1918) 178 Cal. 264 [173 P. 81], and in California Portland Cement Co. v. Boone, (1919)181 Cal. 35 [183 P. 447].

The judgment is reversed in so far as it affects appellants F.H. Dolan and Josephine H. Dolan.

Conrey, P.J., and York, J., concurred.

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