Opinion
Appeal from Superior Court, Los Angeles County; Elliot Craig, Judge.
Action to foreclose mechanics’ liens by the Fraters Glass & Paint Company and others against the Southwestern Construction Company and others. Judgment in favor of defendants Patten against the named plaintiff, and it appeals. Affirmed.
COUNSEL
G. C. De Garmo and H. B. Cornell, both of Los Angeles, for appellant.
Jones & Weller, of Los Angeles, for respondents.
OPINION
KNIGHT, J.
Appellant, Fraters Glass & Paint Company, a corporation, and others brought this action to foreclose certain mechanics’ liens filed by them to secure payment of claims for labor and materials furnished in the construction of a building in the city of Los Angeles, the complaint containing several counts. Although the contractor and the owner were joined as parties defendant with respondents Henry S. and F. W. Patten, who were the sureties on the materialmen’s bond given pursuant to section 1183 of the Code of Civil Procedure, liability for the payment of appellant’s claim, which alone constitutes the subject of this appeal, was urged solely against respondents, and judgment was awarded in their favor.
The bond provided in part that:
"*** All such persons (for whose benefit the same was given) shall have and are given a right of action to recover upon this bond against the said principal and sureties, or either of them, in any suit brought to foreclose mechanics’ liens, which may be filed by such persons, or any of them, upon the property mentioned in said contract, or in a separate suit brought upon this bond, and may recover in such action or actions the value of such labor done or materials furnished, or both. ***"
The total amount for which appellant sued, including a small item of cost incurred in filing the lien, was $5,142. Respondents denied liability to the extent of $4,000, upon the ground that they were induced to become sureties on said bond under an agreement with appellant to the effect that the latter would waive recourse against them for the payment of the sum last mentioned. Upon the issues of fact raised by this defense the trial court found in respondents’ favor as follows:
"That as a part of the consideration for their entering into the undertaking mentioned in paragraph V of said plaintiff’s complaint, and as an inducement to said defendants Henry S. Patten and F. W. Patten to execute said undertaking, said plaintiff Fraters Glass & Paint Company did on the 26th day of April, 1921, and prior to the signing of said undertaking by said defendants, execute and deliver to said defendants an agreement in the words and figures following, to wit: ‘April 26, 1921. Mr. Henry Patten, Patten & Davies Lumber Co., Los Angeles, California— Dear Sir: In connection with the contract between the Southwestern Construction Company and E. B. Rivers, for a building at Seventh and Central, we agree to furnish glass as arranged with Harry E. Martin, to cost approximately $4,000, and to wait 35 days after the completion of said building for payment of same, waiving our lien rights. We are doing this, of course, to help Mr. Martin in this deal and are confident that it will be carried to a successful completion. Very truly yours, Fraters Glass & Paint Co., by J. A. Fraters, Pres.,’ and that defendants relied thereon in executing said undertaking. That it was the intent and purpose of the said plaintiff, by the execution of said writing, to relieve said defendants of the burden of the said undertaking to the extent of the said sum of $4,000 therein mentioned, and that it did thereby waive recourse on said defendants to the extent of said sum of $4,000, the balance due said plaintiff from the Southwestern Construction Company." From the facts thus found the court held that appellant was not entitled to any lien or to recover from these respondents any sum of money whatever, and judgment was entered accordingly.
The sole question presented by the appeal is, as appellant states it, whether, by the execution of the agreement set forth in the findings, "appellant intended to and did waive, not only its right to file and foreclose a mechanics’ lien, but also its right to recover from the sureties on the contractor’s bond," appellant claiming in this respect that notwithstanding that it may have waived its right to file and foreclose a lien, it retained a right of recovery against the sureties under the provisions of the bond (General Electric Co. v. American Bonding Co., 180 Cal. 675, 182 P. 444); and that such was the intent and effect of its agreement.
The case of Balfour v. Fresno C. & I. Co., 109 Cal. 221, 41 P. 876, quotes approvingly the following language from a case decided in another jurisdiction:
"The true interpretation of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or perhaps a corollary, to the general rule above stated, that when any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself,"
— following which our Supreme Court said:
"For the purpose of determining what the parties intended by the language used, it is competent to show not only the circumstances under which the contract was made, but also to prove that the parties intended and understood the language in the sense contended for; and for that purpose the conversation between and declarations of the parties during the negotiations at and before the time of the execution of the contract may be shown. Code Civ. Proc. § § 1860, 1861; (City of) Atlanta v. Schmeltzer, 83 Ga. 609 (10 S.E. 543); Keller v. Webb, 125 Mass. 88, 28 Am. Rep. 209; Long v. Long, 44 Mo.App. 141; Swett v. Shumway, 102 Mass. 365, 3 Am. Rep. 471."
In view of the ambiguity arising from the agreement involved in the instant case by reason of the use therein of the words "waiving our lien rights," it was necessary and proper for the trial court, under the rules above mentioned, to receive extrinsic evidence for the purpose of showing the circumstances under which the language of said agreement was used, and applying it according to the intentions of the parties. It appears that such evidence was adduced, from which, as well as from the terms of the agreement itself, the court determined as a fact that:
"It was the intent and purpose of the said plaintiff, by the execution of said writing, to relieve said defendants of the burden of said undertaking to the extent of the sum of $4,000. ***"
This finding, which is evidently the controlling one in the case, is binding on appeal, unless appellant has shown by the record that the same is not supported by the evidence. This the appellant has failed to do.
The record upon which the appeal is taken does not purport to contain any of the evidence. It consists merely of a "stipulation of facts" setting forth the execution and the copies of the bonds upon which appellant is seeking to recover, together with a statement of the manner in which the money received by the contractor for the performance of the work was deposited and disbursed, and concludes:
"It is further stipulated that the foregoing matter be settled as a bill of exceptions."
The trial court attached thereto the following certificate:
"The foregoing stipulation of facts is hereby settled and allowed as a bill of exceptions and the clerk is hereby instructed to file the same, provided, however, that it is to be noted that the foregoing are not all of the materials, facts, (doubtless meaning material facts) or evidence in the case. [Signed] Elliot Craig, Judge. Dated May 3, 1923." (Italics ours.)
As above indicated said stipulation contained none of the extrinsic evidence above alluded to nor any specification of insufficiency thereof. In that state of the record it is beyond the power of this court to interfere with the trial court’s findings. To charge in the brief merely, as appellant has done, that respondents have "failed to sustain the burden resting upon them, of showing that it was the intention of the parties that plaintiff should waive all rights of recovery except as against the contractor," and also that surrounding circumstances as shown by the record do not tend to support the theory that appellant intended to waive all rights and claims against the sureties, is not enough. Appellant is required to point out in the record evidence or lack of evidence showing that the finding assailed is not supported by evidence (Robben v. Benson, 43 Cal.App. 204, 185 P. 200); and in the absence of any transcript of the evidence or bill of exceptions containing the same, or specifying the insufficiency thereof, it will be presumed that the evidence adduced was competent and material to the issues, was received without objection, and was sufficient to sustain the facts found (2 Cal.Jur. 877; Cooney v. Gray, 49 Cal.App. 664, 194 P. 61, citing cases; Shuken v. Cohen, 179 Cal. 279, 176 P. 447).
The judgment is affirmed.
We concur: TYLER, P. J.; CASHIN, J.