An action by a corporation which furnished lumber and material for a city sewer against the contractor therefor and his sureties, under the bond act (St. 1897, p. 201, as amended by St. 1911, p. 1422), providing that claims must be filed within 30 days after completion of the whole work, was not prematurely brought because the work had never been completed, since We concur: CHIPMAN, P. J.; ELLISON, the language of the statute "within thirty days. Judge, pro tem.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 878; Dec. Dig. 348.]

347-SEWER BOND-COMPLIANCE WITH

5. MUNICIPAL CORPORATIONS
CONTRACTOR'S
STATUTE.

Where the contractor with a city to build a sewer executed a bond with sureties under the bond act (St. 1897, p. 201, as amended by St. 1911, p. 1422), which was approved by the city trustees, and a corporation furnished lumber and material used in the construction of the sewer, no part of which was paid for, and, within six months after filing with the board of trustees of the city its verified claim, sued to recover from the contractor's sureties, the bond having been executed and approved by the trustees one day after the execution of the contract, and the material having been furnished and used subsequently to the execution of the contract and the bond, the statute was sufficiently complied with to authorize a suit on the undertaking for recovery of the value of the material furnished.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 876, 877; Dec. Dig. ~347.]

[1] 1. There is no merit in the contention that by specific averment it should appear that the city was authorized to order the work done. The contract of suretyship upon which the action was brought contains this provision:

"The condition of the above obligation is such that, whereas, the board of trustees of the city of Gridley, a municipal corporation of the sixth class, of the county of Butte, state of California, has heretofore awarded a contract to the above-named principal to do and perform the following work in said city of Gridley: * * Now, therefore, if the above-bounden William F. Farr fails to pay for any materials or supplies furnished for the said work contracted to be done, or for any work or labor thereon of any kind, the sureties on this bond will pay the

same."

Having recited in their undertaking the execution of said contract and, upon the strength of said recital, having induced materialmen to deliver material to be used under said contract, the sureties are estopped from saying that the contract was invalid. People v. Jenkins, 17 Cal. 500; People v. Huson, 78 Cal. 154, 20 Pac. 369; Kiessig v. Allspaugh, 91 Cal. 234, 27 Pac. 662; Moore v. Earl, 91 Cal. 632, 27 Pac. 1087; People v. Hammond, 109 Cal. 384, 42 Pac. 36.

6. MUNICIPAL CORPORATIONS 348-ACTION ON SEWER CONTRACTOR'S BOND-DEMAND. [2, 3] Besides, the presumption would be In an action by a materialman against the sureties on a sewer contractor's bond given un- that the contract was legal, and, if otherder the bond act (St. 1897, p. 201, as amended wise, the burden would be upon defendants by St. 1911, p. 1422), demand on the sureties so to assert and prove. Indeed, the allegafor payment was not a condition precedent to the materialman's recovery; it being sufficient tion of the ultimate fact that said Farr "ento show a breach of the sureties' obligation and tered into a written agreement with the city the materialman's compliance with the statute. of Gridley, * * whereby said William [Ed. Note.-For other cases, see Municipal F. Farr did covenant and agree to construct Corporations, Cent. Dig. § 878; Dec. Dig. for said city a sewer system," etc., neces348.] sarily carried the implication that said con

Appeal from Superior Court, Butte Coun- tract was in accordance with the requirement ty; H. D. Gregory, Judge.

Action by the Live Oak Lumber Company against William F. Farr and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J. R. King, of Gridley, and Wetmore & Davies, of Marysville, for appellants. A. F. Jones and George F. Jones, both of Oroville, for respondent.

BURNETT, J. The appeal is from a judgment in favor of plaintiff and respondent for

lumber and material furnished to William F. Farr to be used and which was used in the

construction of a sewer system for the city of Gridley, a municipal corporation of the sixth class. The action was brought under the provisions of the so-called "bond act," approved March 27, 1897 (Stats. 1897, p. 201), as amended in 1911 (Stats. 1911, p. 1422).

The complaint contains two counts, one for the material furnished by plaintiff, and the other on an assigned claim for similar material furnished by the Diamond Match Company. A demurrer interposed by defendants was overruled, and an answer was filed, and a trial had before the court. The appeal is on the judgment roll alone.

of the law. This is true, at least, where the contract is, as here, manifestly within the scope of the authority granted to municipalities.

[4] 2. The second point made by appellants is that the complaint is insufficient because of its failure to allege that the work under the contract was completed. Indeed, it is expressly averred "that said work has never been completed." The contention that the action was prematurely brought is based upon the fact that said act provides that the claims must be filed "within thirty days after the completion of the whole work." The elaborately considered in French v. Powell, significance of this expression, however, was 135 Cal. 636, 68 Pac. 92, in an opinion written by Commissioner Chipman. As stated therein:

"Plaintiff's complaint sets forth three causes of action upon a bond executed by defendant Powell, as principal, and defendant company, as surety, under the provisions of the act of leged that Powell entered into an agreement March 27, 1897 (Stats. 1897, p. 201). It is alwith the city of Los Angeles on February 8, 1889, to construct a tunnel in Third street, from Hill to Flower street, and to furnish at his therefor, and that said work was never comown cost all the labor and material necessary i pleted."

This case in every essential is like the Gridley and defendant Farr; (3) the execution one at bar, and respondent's position was ex-of the bond by defendant Farr as principal, and defendants Smith and Hueberger as sureties; pressly approved that said language "shall (4) the approval of the bond by the board of within thirty days after the completion of trustees of said city; (5) that plaintiff furnishthe whole work" was meant simply "to set aed lumber and material which was used in the limit of time after which such claims could not be filed, and not to forbid the filing of a claim before the completion of the whole work, provided the claimant's demand is past due." Said decision has never been overruled, although it is the contention of appellants that two later decisions are in conflict

with it. The first of these is Republic, etc., Co. v. Patillo, 19 Cal. App. 316, 125 Pac. 923, being an action under the so-called Vrooman Act. Therein the claimant was required to file a verified statement with the street superintendent, setting forth the amount of his claim "within thirty days from the time the improvement was completed." In the opinion it is declared:

"It may be added that until the street improvement work had been completed under the terms of the statute the notice of plaintiff's claim could not have been properly filed, and any action brought on the bond prior to such completion, or before the occurrence of such events as might make a showing of formal completion unnecessary, would be premature."

It is apparent, however, that the foregoing statement was unnecessary to the decision, as the vital defect in the case was the failure of the claimants to file their verified claim.

A similar situation existed in the other case, Miles v. Baley et al., 149 Pac. 45, in which the Supreme Court adopted the opinion of this court prepared by Justice Hart. The decisive question in that case was whether the bond is what is known as a "commonlaw bond" or a statutory undertaking; appellant having contended that it was the former and that therefore, it was not necessary to file a claim with the board of trustees as required by the statute.

construction of said sewer to the value of $515.50, allowed as credit after demand; (6) that on 20, no part of which has been paid, except $17.June 2, 1913, plaintiff filed with the board of trustees of said city its verified claim; (7) of said claim; (8) that said work has never been that six months has not elapsed since the filing completed."

There is no finding, nor was there any allegation, that the bond was filed before the work was commenced by the contractor. It is, however, alleged and found that said bond was executed and approved by the trustees one day after the execution of said contract, and it also appears that the material was furnished and used subsequently to the execution of said instruments. This shows a sufficient compliance with the requirement of the statute to authorize a suit on the undertaking for the recovery of the amount of said material.

[6] 3. We do not understand that it was necessary to allege or find that a demand was made on the sureties for payment. It was sufficient to show a breach of defendants' obligation and a compliance with the provisions of the statute on the part of plain

tiff.

No other points seem to be insisted upon by appellants, and we think no good reason has been suggested for reversing the judg

ment.

It is therefore affirmed.

We concur: CHIPMAN, P. J.; HART, J.

(28 Cal. App. 609) W. P. FULLER & CO. v. ALTURAS SCHOOL DIST. et al. (Civ. 1390.)

As to both these cases, it appearing that (District Court of Appeal, Third District, Cal

ifornia. Oct. 20, 1915.)

1. PRINCIPAL AND SURETY 59 — LIABILITY
OF SURETY-STRICT CONSTRUCTION.
Sureties are never bound beyond the strict

stand upon the precise terms of their agreement,
which cannot be extended beyond the stipulation
to which they have bound themselves.

the claimant had failed entirely to perform an act made essential by the statute to constitute a cause of action, it is quite plain that a discussion of the question as to the exact time when such act should be perform-letter of their contract, and have the right to ed was of mere academic interest. In neither of said cases was the attention of the court called to the decision in French v. Powell, for the quite manifest reason, probably, that it was not in point as it involved the actual filing of a claim before the improvement was completed, while they were concerned with a situation where the improvement had been completed but no claim was filed at all.

[5] The foregoing consideration involves the principal objection made to the complaint, and is, as we think, not tenable. Indeed, appellants' synopsis of the complaint indicates its sufficiency. It is as follows:

An allegation of: "(1) The incorporation of plaintiff; (2) the execution of a contract for the construction of a sewer with the city of

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 103, 103%; Dec. Dig. 59.]

2. PRINCIPAL AND SURETY 82-CONSTRUCTION OF BOND-CONTRACT AS PART.

of a contract according to its terms becomes a A bond given to guarantee the execution part of such contract, and the sureties therein become parties to the contract as if they had actually made it.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 127; Dec. Dig. 82.] 3. PRINCIPAL AND SURETY 82-BUILDING CONTRACT-LIABILITY OF SURETY-MECHANICS' LIENS.

Civ. Code, § 1559, provides that a contract made expressly for the benefit of a third person may be enforced by him at any time before re

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

acission by the parties thereto. A contract with | $1,262.29. This appeal is prosecuted from a school district for the building of a school- said judgment by the sureties on said bond, house did not expressly guarantee the contrac- Estes, Toreson, W. Wade Williams, B. L. tor's payment of claims against him for material and labor furnished in its construction, but re- Kelley, and C. W. Williams. quired him, at his own cost and expense, to provide material and labor, and the contractor's bond undertook that the contractor should perform the conditions and agreements of the contract. Held, that the bond was not given for the sole benefit of the school district, but inured to the benefit of third parties furnishing labor and material to the contractor in its construction; and that the sureties were not relieved because the building was a public building not subject to the lien law.

The contract, to insure the performance of which the bond sued on was given, was entered into on the 6th day of June, 1911, and by its terms Pearson agreed to construct a two-story school building for the school district and "at his own expense and cost find and provide" all the materials and furnish all the labor necessary to its completion in conformity to the plans and specifications according to which it was to be constructed for the sum of $20,350.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. § 127; Dec. Dig. 82.] 4. PRINCIPAL AND SURETY 100-BUILDING Pearson entered upon the execution of the CONTRACT LIABILITY OF SURETY-MECHAN- terms of the contract in due time, but, for ICS' LIENS-MODIFICATION. Upon such bond, construed with the build-reasons not disclosed by the record before us, ing contract, which provided that the owner abandoned the contract before completing the might make any additions, changes, etc., without construction of the building according to his notice to the surety, changes from the contract by substituting a brick hollow wall for a solid agreement. It appears that, of the contract stone wall, putting in a subfloor on the first price, he was paid a trifle over the sum of floor, changing the floor and finish material from $14,000, which constituted approximately 75 pine to hardwood, changing the location of rooms, per cent. of the contract price. Upon the and substituting a larger heating plant, made without notice to or consent of the sureties, abandonment of the contract by Pearson, the and the excess cost of which was paid by the school district itself took charge of the same district, independently of the contract, was not and completed the construction of the buildso material as to relieve them from their lia-ing according to the Pearson contract and bility to parties furnishing labor and materials in its construction.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 162-165; Dec. Dig. 100.]

Appeal from Superior Court, Modoc County; C. A. Raker, Judge.

Action by W. P. Fuller & Company against Alturas School District of Modoc County, E. F. Auble and others, trustees of said district, and A. E. Pearson and others. Judgment for plaintiff against defendants Pearson and others, sureties on his bond, and the sureties appeal. Affirmed.

Jamison & Wylie, of Alturas, for appellants. L. T. Hatfield, of Sacramento, for respondent.

HART, J. This is an action on a bond executed by one A. E. Pearson, as principal, and the appellants, as sureties, and given for the purpose of guaranteeing the faithful performance of a certain contract entered into by said Pearson and the defendant, school district, for the construction by Pearson of a two-story school building for said district. A number of persons who had furnished either material for or bestowed labor upon the work of construction assigned their respective claims to the plaintiff, and the action here is by the plaintiff on a claim of its own for materials alleged to have been furnished by it to Pearson and on the several assigned claims referred to; the same being set up in the complaint in different counts by appropriate averments. The plaintiff was awarded judgment against Pearson and the appellants (sureties on the bond upon which the action is founded) in the total sum of

the plans and specifications. The total amount expended in the construction of the building, as finally completed, exceeded by a few hundred dollars the contract price.

It is not claimed that the undertaking was executed and given in pursuance of the provisions of the act of 1897, entitled "An act to secure the payment of the claims of materialmen, mechanics, or laborers, employed by contractors upon state, municipal, or other public work." Stats. 1897, pp. 201, 202. See, also, Stats. 1911, p. 1422, whereby said statute was amended in certain particulars. It taking is a common-law bond. is, on the contrary, conceded that the under

The part of the said undertaking important to the inquiry here reads as follows:

"The condition of the above bond is such that, if the said above bounden A. E. Pearson, his heirs, executors and legal representatives, shall in all things stand true and abide by and well and truly keep and perform the covenants, conditions and agreements in that certain contract this day made and entered into by and between the said A. E. Pearson and the said Alturas tion of the Alturas public school building, as school district, for the construction and compledescribed therein, which the said A. E. Pearson, by said contract has agreed to do and perform, and shall in all respects fully carry out and perform his part of said contract, as therein stipulated, then the above obligation shall be void; otherwise to remain in full force and effect."

It is not disputed that the materials and the labor to recover the value of which is the ultimate object of this action were furnished by the plaintiff and its assignors to Pearson, the contractor, and used in and upon the construction of the building.

The defendants demurred to the complaint for want of sufficient facts and the same was

labor to be used in the construction of the building.

While neither the bond itself nor the building contract expressly guarantees that the contractor shall pay claims arising against him by reason of materials and labor furnished to him for use in the construction of the building, it is nevertheless, very clear that the language of the contract sufficiently implies that such obligation was imposed upon him to justify us in giving the undertaking that interpretation, and that such was its intention and purpose. The undertaking, as seen, guarantees that the contractor "shall, in all things, stand true and abide by and well and truly keep and perform the covenants, conditions and agreements in that certain contract and shall in all re

overruled. Thus, and by an attack upon the finding involving a construction of the undertaking and its scope and effect, the first point urged against the legality of the judgment is presented, viz.: That the plaintiff failed to state or establish a cause of action against the sureties named as defendants herein for the reason, so it is asserted, that the bond upon its face shows that it was given to the school district and not to materialmen, mechanics, and laborers furnishing materials and labor to the contractor, and that the sole purpose of the bond was therefore to bind the contractor to carry out and perform the terms of the building contract made by him with said district and to furnish at his own expense the labor and material necessary to complete the building according to the contract and plans and speci- spects fully carry out and perform his part fications. In other words, it is the contention of said contract, as herein stipulated," etc. that the bond was not intended to bind the What were the covenants, conditions, and contractor to pay for the materials and labor agreements the performance of which they used in and upon the building, and that thus guaranteed? Among them was the contherefore with the completion of the struc- dition or covenant or agreement that, at ture by the contractor conformably to the his own cost and expense, the contractor terms of the contract and the plans, draw- will provide the materials and the labor esings, and specifications terminated the lia-sential to the construction and completion of bility of the sureties, notwithstanding that the structure according to the terms of the some of the materials and labor used and employed in the construction of the building might not have been paid for by the contractor. Hence it is argued that the trial court erred in overruling the demurrer and in its interpretation of the undertaking.

[1] It is elementary that:

"Sureties are never bound beyond the strict letter of their contract; that they have a right to stand upon the precise terms of their agreement, and that there is no authority for extending their liability beyond the stipulation to which they have chosen to bind themselves." Callan v. Empire Surety Co., 20 Cal. App. 483, 485, 129 Pac. 978, 981.

[2] But it is also elementary that a bond given to guarantee the execution of a contract according to its terms becomes a part of such contract, and to that contract the sureties become parties the same as though they had actually made and executed the contract itself. Therefore, in interpreting the language of the undertaking for the purpose of gathering its scope or the measure of the liability of the sureties, we must do so by treating or viewing the contract and the undertaking as a whole or as constituting an indivisible, contract. In other words, we must, in order to ascertain the nature and extent of the liability to which the sureties have bound themselves, examine the undertaking by the light of the agreement of whose terms it guarantees the faithful performance.

[3] Thus construing the undertaking in the present case, it seems to us that there is no escape from the conclusion that the same was not given for the sole benefit of the school district, as is the contention of the appealing defendants, but that it was intended to inure as well to the benefit of third parties providing materials and furnishing

building contract, and the language, "at his own cost and expense," obviously means that thus the contractor intended to and did bind himself to pay for such materials and labor, and, as declared, the liability of the sureties is coextensive with that of the contractor. It may be suggested that doubtless the materialmen and laborers concerned here, knowing that public buildings are not subject to the operation of the mechanics' lien law, so called, and knowing, furthermore, that they could have no legal recourse against the school district for the recovery of the amounts which might become due them on their claims against the contractor (there being no contractual relation between them and the district by reason of their transactions with the contractor), furnished the materials and labor to the contractor on the faith of the undertaking, and, as stated, from the general tenor of that instrument, as viewed in the light of the contract, they were justified in doing so.

An opposite view of an undertaking in substantially the same language as the bond here was taken in the case of Boas v. Maloney, 138 Cal. 105, 70 Pac. 1004, the conclusion reached therein being supported by the case of Gato v. Warrington, 37 Fla. 542, 19 South. 883. But in the case of Callan v. Empire Surety Co., 20 Cal. App. 483, 129 Pac. 978, 981, the District Court of Appeal of the First District had occasion to consider an undertaking of the character of the one here and which was in similar language. The question was exhaustively examined and many authorities involving the same proposition considered by Mr. Justice Kerrigan of that court, and it was there found and shown that the doctrine of the Maloney and Gato