DocketNumber: No. 15543
Citation Numbers: 104 Cal. 239, 37 P. 904, 1894 Cal. LEXIS 889
Judges: Fitzgerald, Haven, McFarland
Filed Date: 9/28/1894
Status: Precedential
Modified Date: 10/19/2024
Appeal taken by the plaintiffs from a judgment in favor of the defendant. The only question arising upon the record before us is this: Do the findings of the court, read in connection with the facts admitted by the pleadings, sustain the judgment? The facts shown by the record are these: The defendant entered into a written agreement with one Houser for the alteration and repair of a certain house belonging to the defendant. The contract price of this work was $4,600, the said Houser to do all the work and furnish at his own expense all the materials used in the alteration and repair of such building, and deliver the same to the defendant free from liens on account of labor or materials. The contract price was to be paid in installments, three during the progress of the work, and the last one of $1,300, thirty-five days after the building was completed. Accompanying the contract was a bond in the sum of $4,000, executed to defendant by the contractor, Houser, as principal, and the plaintiffs as sureties, “ guaranteeing the performance of all the conditions of said contract on the part of the said Houser, and, among other things, that said house should be delivered to the defendant free from all liens that might arise from or be filed against said building on account of material or labor furnished by said Houser, and used in or about said structure.”
The plans and specifications forming a part of the contract for the alteration and repair of defendant’s building were not filed in the office of the county recorder.
The plaintiffs are lumber dealers, and they sold and delivered to the contractor, Houser, lumber of the value of $1,036, to be used by him in the alteration and repair of defendant’s building, and for which sum they duly filed their claim of lien against said building.
As a conclusion of law from the foregoing facts, the superior court found, in substance, that the counterclaim of defendant was established, and that he was entitled to a judgment against plaintiffs for his costs.
1. The bond executed by plaintiffs, and by the terms of which they undertook to protect the defendant against all claims for liens which might arise or be filed against his building on account of material or labor used or employed by Houser in the performance of his contract with defendant, was valid, notwithstanding the plans and specifications forming a part of the building contract were not filed with the county recorder. (Kiessig v. Allspaugh, 91 Cal. 234; 99 Cal. 452.) This being so the judgment of the superior court was right. The note
2. But, if we, assume, as did the court below, that the note is not without a legal consideration to support it, still it is clear the plaintiffs'are not entitled to recover in this action. The note was given- for the purpose of discharging one of the liens against which plaintiffs undertook to indemnify the defendant when they executed the bond as sureties for the contractor, and immediately upon the payment of such note a cause of action would have arisen by virtue of the terms of such bond in favor of defendant against the plaintiffs for the amount so paid. Under such circumstances, and to avoid cireuity of action, the defendant should be permitted tc interpose plaintiffs’ liability upon the bond as a defense to this action. The court did not find that defendant made any valid agreement to release plaintiffs from their obligation as sureties for the contractor, and no such legal effect was worked out by the mere
Judgment affirmed.