Opinion
Appeal from Superior Court, Butte County; H. D. Gregory, Judge.
J.R. King, of Gridley, and Wetmore & Davies, of Marysville, for appellants.
A. F. Jones and George F. Jones, both of Oroville, for respondent.
CHIPMAN, P. J.
Plaintiff had judgment in the action on its own account and as assignee of the Diamond Match Company for lumber and materials furnished to defendant Farr to be used, and which were used, in the construction of a sewer system for the city of Gridley, a municipality of the sixth class. The action was brought under the so-called " Bond Act," approved March 27, 1897 (Stats. 1897, p. 201), as amended in 1911 (Stats. 1911, p. 1422), against defendant Farr as principal and defendants Hueberger and Smith as sureties. A general and special demurrer to the complaint was overruled. Defendants appeal from the judgment on the judgment roll alone.
The bond given by defendants was drawn with strict reference to the statute, and ran to " any and all persons, companies and corporations who perform labor on and furnish material to be used in the work to be performed under and by virtue of the contract mentioned, in the sum of $2,100.00," and recites that it was drawn
" as provided by an act of the Legislature of the state of California, entitled ‘ An act to secure the payment of claims of materialmen, mechanics or laborers, employed by contractors on state, municipal or public work,’ approved March 27, 1897, and amendments thereto."
The complaint was sufficient as against a general demurrer.
The contention that the action was prematurely commenced, because at the time the work was not entirely completed, cannot be sustained. The complaint alleged, and the court found, that the said work has never been completed. The same point was made in French v. Powell, 135 Cal. 636, 68 P. 92, where the action was brought before completion of the contract. The court said:
" Appellants contend that the suit is prematurely brought, for the reason, as appellants construe the terms of the act, that the claims must be filed within 30 days after the completion of the whole work. In other words, that the expression, ‘ shall within thirty days from the time such work is completed,’ etc., fixes the beginning and the ending of the time within which the claim must be filed. * * * Appellants' argument is that the act must receive the same construction as was given section 1187 of the Code of Civil Procedure, where the language is, ‘ Within thirty days after the completion of any building * * * file and record,’ the court has held that this meant the claim must be filed after the completion of the contract or building, a filing [of the claim] before completion being held of no effect. * * * We can see no good reason why the act should receive the construction contended for by appellant, while there are reasons why this construction should be rejected. Aside from the long delay which often attends the final completion of public work, and the consequent hardship entailed on laborers if compelled to wait so long, there is the clear right to sue the contractor at any time; and why should his surety who has taken on himself in some measure the contractor's burden, be in any better position?"
The same case holds that the bond is not invalid because it runs to " any and all persons."
Respondent makes the point, which is not without force
" that the sureties, having entered into this bond, and having induced the respondents, by reason of the security furnished them, to deliver material for use in the work, should not now be permitted, in justice and reason to say that the contract under which the bond was issued was not a valid one" --citing numerous cases, among them: Kiessig v. Allspaugh, 91 Cal. 234, 27 P. 662; People v. Huson, 78 Cal. 154, 20 P. 369; Moore v. Earl, 91 Cal. 632, 27 P. 1087; also, Brandt on Suretyship, § 29; Bigelow on Estoppel, 361.
Appellants cannot be heard to complain that the court did not make findings upon the special defense set forth in the answer. In Winslow v. Gohransen, 88 Cal. 450, 26 P. 504, the court said:
" The issues upon which the court made no finding in the present case were issues tendered by the answer, and it was incumbent upon the defendant to introduce evidence in their support. There is no presumption that such evidence was introduced, and unless the defendant did introduce evidence which, unless controverted, would sustain his allegations, the court was not required to make any findings thereon. It is not enough for him to show merely that evidence was introduced, but is must also be shown that the evidence which was introduced was sufficient to support his allegations. * * * The appellant is not prejudiced unless the court shall fail to make such findings in his behalf as will countervail its other findings; and as error in the court below is not to be presumed, but must be shown by him, it is incumbent on him to produce before this court the evidence that was presented to that court, in order that we may determine whether any error was committed in failing to make such findings."
See Dolliver v. Dolliver, 91 Cal. 642, 30 P. 4; Roebling's Sons Co. v. Gray, 139 Cal. 607, 73 P. 422.
The findings fully support the judgment, and it is therefore affirmed.
We concur: ELLISON, J., pro tem.; HART, J.