Thode v. McAmis, 6047
| Decision Date | 06 April 1950 |
| Docket Number | No. 6047,6047 |
| Citation | 216 P.2d 548,96 Cal.App.2d 833 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THODE et al. v. McAMIS et al. Civ. 7722. Sac. |
Hubert I. Townshend, Oroville, for appellants.
King & Savage, Oroville, J. F. Good, Oroville, for respondents.
The appellants herein are copartners doing business under the firm name of Thode & Sons Lumber Company. As plaintiffs in the trial court they brought an action to recover from defendants Jester, Stockwell and Henderson, copartners doing business as The Woodcraft Shop, the value of certain materials sold by them to said defendants and by said defendants used in the construction of a dwelling house for defendants L. C. McAmis and Virginia McAmis, husband and wife. Against the property of the defendants McAmis they sought foreclosure of a materialman's lien. They also sought to recover from defendant Standard Accident Insurance Company, a corporation, the value of the same materials, basing their claim for this relief upon a bond given by that company to the owners. They recovered judgment against defendant Jester as prayed for. They were denied judgment against the owners because they had failed to perfect their claim of lien against the owners' property. They were denied relief against the insurance company, and it is from this last part of the judgment, that which denied them any relief against the insurance company, that they appeal.
Doctor McAmis and his wife, under date of May 27, 1946, entered into a contract with Jester and his associates, wherein they were referred to respectively as owner and contractor, under which designations they will be hereinafter referred to. By the agreement the contractor agreed to build a dwelling house upon a lot owned by the owner in accordance with plans and specifications referred to in the instrument. The owner agreed to pay the stipulated price in five equal installments. Specifically, the contractor agreed to provide all the materials and to perform all the work shown on the drawings and described in the specifications, entitled "Proposed Dwelling for Dr. and Mrs. L. C. McAmis' * * * and to do everything required by the general conditions of the contract, the specifications and the drawings.' Work was begun June 1, 1946. One June 3d following, the Standard Accident Insurance Company, hereinafter referred to as the Insurance Company, executed and delivered to the owner a bond, the material portions of which read as follows:
'That Earl Juster, Earl Hunderson and Harvey Stockwell doing business as The Woodcraft Shop (hereinafter called Principal) as Principal, and the Standard Accident Insurance Company, a corporation of the State of Michigan, * * * as Surety, are held and firmly bound unto Dr. L. C. McAmis (hereinafter called Owner) in the full and just sum of Eleven Thousand Nine Hundred Eighty seven and 85/100 Dollars ($11,987.85) to the payment of which, well and truly to be made, the Principal and Surety bind themselves, * * *, firmly by these presents.
'Whereas, the Principal has entered into a certain written contract, * * *, with the Owner for Construction of a dwelling in Oroville, California,
'Now, Therefore, the condition of the above obligation is such, That, if the above bounden Principal shall indemnity the Owner from and against any and all loss or damage directly arising by reason of the failure of the Principal to perform faithfully said contract, as well as against any and all direct loss which the Owner may sustain by reason of any mechanic's lien or liens that may be finally established against said improvements and the ground upon which constructed, for work done and/or material furnished in and about the performance of said contract, then this obligation shall be void, otherwise of full force and effect.'
Neither the contract nor the bond was recorded as might have been done under Section 1183 et seq. of the Code of Civil Procedure, and it is apparent by reference to the date of the bond that since it was made after work commenced it could not have been filed for record before the work was commenced under the contract, as would be necessary in respect to the bond given under those sections if the same was to afford all of the protection which the recording of a contract and bond provided for in those sections would afford to the owner. As before stated, appellants never perfected their claim of lien against the property of the owner, but they sought by their complaint in the trial court to recover directly from the Insurance Company, claiming they had a right so to do in an action direct upon the bond.
We think the bond involved here permits of no such construction as will afford appellants any claim against the Insurance Company. The language of the bond is clear. It is strictly a contract of indemnity. The language used is apt and free from ambiguity. The Insurance Company does not undertake or guarantee that the contractor will perform the contract or that liens may not be established against improvements and the ground upon which they are to be constructed, but on the contrary undertakes to indemnify the owner against such loss or damage, if any, as the owner may suffer if the principal does fail or if such liens are finally established. Such a contract affords a remedy to the owner to the extent of such loss only, and only after a loss has been actually paid by owner. Civ.Code, sec. 2778. This latter condition, of course, expressed in the cited code section, is as much a part of the instrument as though set out therein. Contracts of suretyship are to be interpreted under the same rules to be observed in the case of other contracts. Civ.Code, sec. 2837. The parties to this contract are only the contractor, the owner and the Insurance Company, and every provision of the contract can be given full application without consideration of any other persons. It results therefore that appellants had no right of action upon this...
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