Smith v. McKnight — 117 Cal. App. 427

Majority

p. 427

[Civ. No. 6684.

Second Appellate District, Division One.

October 10, 1931.]

H. G. SMITH, Plaintiff and Respondent, v. J. R. McKNIGHT, Defendant and Respondent; F. H. DOLAN et al., Appellants.

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

p. 428

such claim, the persons . . . filing the same . . . may commence an action ... on said bond . . . ” 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 Pac. 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 Pac. 45 ] ; San Dimas Quarry Co. v. American Surety Co., (1916) 30 Cal. App. 3 [ 157 Pac. 548 ] ; Evans v. Shackelford, (1923) 64 Cal. App. 750 [ 222 Pac. 846 ], See, also, the discussion in Hub Hardware Co. v. Aetna Accident & Liability Co., (1918) 178 Cal. 264 [ 173 Pac. 81 ], and in California Portland Cement Co. v. Boone, (1919) 181 Cal. 35 [ 183 Pac. 447 ],

The judgment is reversed in so far as it affects appellants P. H. Dolan and Josephine PI. Dolan.

Conrey, P. J., and York, J., concurred.

Cases cited

Republic Iron & Steel Co. v. Patillo 19 Cal. App. 316 Cal. Dist. Ct. App. 1912-06-20 p. 428
Miles v. Baley 170 Cal. 151 Cal. 1915-05-11 p. 428
San Dimas Quarry Co. v. American Surety Co. of New York 30 Cal. App. 3 Cal. Dist. Ct. App. 1916-02-28 p. 428
Evans v. Shackelford 64 Cal. App. 750 Cal. Dist. Ct. App. 1923-12-15 p. 428
Hub Hardware Co. v. Aetna Accident & Liab. Co. 178 Cal. 264 Cal. 1918-05-10 p. 428
California Portland Cement Co. v. Boone 181 Cal. 35 Cal. 1919-08-16 p. 428