Opinion
Docket No. 6684.
October 10, 1931.
APPEAL from a judgment of the Superior Court of Los Angeles County. Hugh J. Crawford, Judge. Reversed.
The facts are stated in the opinion of the court.
Benno M. Brink for Appellants.
Fred W. Heatherly and Alfred W. Allen for Plaintiff and Respondent.
Horace P. Babson for Defendant and Respondent.
So far as pertinent to our problem, the provisions of section 19 of the Improvement Act of 1911 are the following (effective in the year 1925): "Every contractor . . . to whom is awarded any contract for street work under this act, shall . . . file . . . a good and sufficient bond . . . to inure to the benefit of any and all persons . . . who perform labor on, or furnish materials to be used in said work of improvement. . . . Any laborer, materialman . . . whose claim has not been paid . . . may, at any time prior to thirty days after the recording of the assessment for said work, file with the superintendent of streets, a verified statement of his or its claim, together with a statement that the same, or some part thereof, has not been paid. At any time within ninety days after the filing of such claim, the persons . . . filing the same . . . may commence an action . . . on said bond . . ." [1] Because there is neither allegation, nor proof, nor finding of fact, that plaintiff had filed his claim within the time prescribed, his judgment, recovered on a bond given under this section by the appealing sureties, must be reversed. This was the conclusion reached in Republic Iron Steel Co. v. Patillo, (1912) 19 Cal.App. 316 [ 125 P. 923], where provisions of the Vrooman Act, in all essentials identical with the provisions quoted above, were applied. It is a conclusion further supported by Miles v. Baley, (1915) 170 Cal. 151 [ 149 P. 45]; San Dimas Quarry Co. v. American Surety Co., (1916) 30 Cal.App. 3 [ 157 P. 548]; Evans v. Shackelford, (1923) 64 Cal.App. 750 [222 P. 846]. See, also, the discussion in Hub Hardware Co. v. Aetna Accident Liability Co., (1918) 178 Cal. 264 [ 173 P. 81], and in California Portland Cement Co. v. Boone, (1919) 181 Cal. 35 [ 183 P. 447].
The judgment is reversed in so far as it affects appellants F.H. Dolan and Josephine H. Dolan.
Conrey, P.J., and York, J., concurred.