Summary
In Barber v. Burrows, 1876, 51 Cal. 404, 405, 407, one of the earliest California cases on the subject, it appeared that the instrument called for execution by four persons. Only three executed it.
Summary of this case from In re Quartz Crystal Products Co.Opinion
Appeal from the District Court, Sixth Judicial District, County of Sacramento.
On the 10th day of June, 1872, defendant Burrows entered into a contract in writing with the plaintiff to erect for him a dwelling-house in Sacramento and furnish the materials therefor. The plaintiff was to pay him five thousand two hundred dollars. At the same time, Burrows, as principal, and defendants Bauquier and Gwynn, as sureties, executed to the plaintiff a bond in the penal sum of four thousand dollars, conditioned that Burrows should perform the terms of his contract. The dwelling, by the terms of the contract, was to be completed by the first day of September, 1872, and Burrows was to furnish and pay for all labor and materials. The building was not completed until November, 1872. Burrows also failed to pay for all the materials, and liens were filed on the building, by reason whereof Barber sustained damages in the sum of seven hundred and twenty-five dollars. This was an action to recover the damages. On the 2d day of September, 1872, the following agreement was indorsed on the contract for the erection of the dwelling, to which contract the bond was attached:
" It is hereby agreed between the parties to the within contract, that the said second party shall have until the first day of November, 1872, in which to complete the work in said contract described, and it is understood that this shall not in nowise interfere with or lessen the liability of the sureties upon the bond given by said second party. In witness whereof the parties hereunto set their hands and seals this second day of September, 1872.
" M. Barber, [L. S.]
" J. Burrows, [L. S.]
" Wm. Gwynn, [L. S.]"
The sureties claimed that the agreement amounted to an extension of time given by Barber to Burrows, and that they were thereby released. The court rendered judgment against Burrows and the sureties, and the sureties appealed from the judgment and from an order denying a new trial.
COUNSEL:
Beatty & Denson, for the Appellant.
R. C. Clark and L. S. Taylor, for the Respondent.
OPINION By the Court:
The instrument of September 2, 1872, was never completely executed. It is evident upon an inspection of the writing itself that it was intended to be signed by all the parties to the contract upon which it was indorsed. These parties were the two principals in the contract and the two sureties upon the bond attached to and forming a part of the contract. It was signed by but three of these persons.
As the contract for the extension of time was not complete, it was not obligatory.
Judgment and order denying a new trial affirmed. Remittitur forthwith.