62 P. 41 | Cal. | 1900
Appeal from judgment on the judgment-roll and a bill of exception. The facts are substantially as follows:
On the 25th of August, 1897, one Lutge entered into a written agreement with the "Long Beach city school district" *393 in Los Angeles county to furnish material and build a public schoolhouse in the town of Long Beach upon the premises described in said agreement for the sum of eleven thousand two hundred and sixty-nine dollars. It was provided in said agreement that Lutge should, at the time of execution thereof, also execute and deliver to said district an undertaking in the sum of ten thousand dollars, with sufficient sureties for the faithful performance of the contract. The said undertaking was executed and delivered to the said district with the defendants as sureties thereon. It was expressly provided therein as follows:
"We further agree that we will pay all his subcontractors, laborers, and materialmen all the moneys that may become due them by reason of labor or materials under the contract, and we hereby guarantee to them the payment in full of all their claims, and hold ourselves responsible to them in the sum of ten thousand ($10,000) dollars in legal money of the United States; or as much as may be necessary of the said sum to pay them in full for all labor and materials furnished for said building, whether inclusive or exclusive of the contract price of the same. And this bond shall inure to the benefit of any and all persons who labor for or furnish materials to the said contractor or any person acting for him or by his authority."
On December 7, 1897, Lutge, without having completed the schoolhouse, abandoned the contract, and at the time of such abandonment was indebted to plaintiff in the sum of seven hundred and forty-nine dollars, for labor and material performed upon and used in the construction of the building, which sum has not been paid. This action is brought against defendants on said undertaking to recover the amount due plaintiff. It is not contended that the amount is not due and owing to plaintiff by Lutge, neither is it contended that defendants did not agree that the materialmen and laborers should be paid as provided in the undertaking.
It is claimed by defendants that as the school building to be erected by Lutge was not and could not be subject to any lien by the contractor, or anyone else, that the school district had no authority to demand the undertaking of Lutge, and *394 that the undertaking was without consideration and void, and that plaintiff is not in privity therewith. It is said that the provisions of section 1203 of the Code of Civil Procedure, as to filing a bond with sureties, relates entirely to contracts required to be filed under the preceding sections, and to contracts by owners whose property is subject to liens, and not to a contract with a school district where no lien could under any circumstances be filed upon the property of the district.
It is further claimed that section
This case was followed and approved in Kiessig v. Allspaugh,
The fact that a lien could not be filed by plaintiff upon the building was, in contemplation of law, known to the sureties when they signed the undertaking. By the undertaking they bound themselves to pay the obligations that might be incurred by their principal. This obligation having been incurred by the principal, under the contract of guaranty made *396 by defendants, is binding upon them. They are estopped from claiming that the undertaking was not the particular kind of undertaking required by the codes.
The late case of Williams v. Markland,
The same rule has been laid down by the supreme court of Michigan in Knapp v. Swaney,
The secretary of the plaintiff while on the stand as a witness was asked by plaintiff's counsel what effect the making and giving the bond had upon his entering into the contract on behalf of the plaintiff. The defendants' objection to the *397 question was overruled, and the ruling is assigned as error. Conceding the ruling to be error, it is harmless. The plaintiff as a matter of law had a right to rely upon the bond. (Baker v.Bryan, supra.) For the same reason it was not error to sustain plaintiff's objection to a question asked of the same witness in cross-examination as to whether he relied upon a statutory bond at the time of entering into the contract. The question as to whether the bond was a common-law bond or a statutory bond was not one which it was the province of the witness to determine.
The tenth finding was to the effect that the labor and material furnished by plaintiff was so furnished in consideration of the execution of the bond, and is challenged as having no support in the evidence. The finding is wholly immaterial and it is not necessary to determine whether or not it is supported by the evidence. If what has been herein said is correct it follows that the bond was for the benefit of plaintiff, and the labor and material are presumed to have been furnished in consideration of the whole contract including the bond.
It follows that the judgment should be affirmed.
Chipman, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
Harrison, J., Garoutte, J., Van Dyke, J.
Hearing in Bank denied.