ANNIE DALEY et al. v. J. A. CUNNINGHAM et al.

[No. 7,000. Department Two.] May 30, 1882. ANNIE DALEY et al. v. J. A. CUNNINGHAM et al. Parties—Joinder of Parties—Action—Trustee—Bond.—The defendant, O., entered into a contract with the plaintiff, D., for the construction of a building upon a lot belonging to them, upon which the plaintiff, the Savings and Loan Society, held a mortgage; and for the faithful performanee of the contract, 0. and the other defendants as sureties gave their bond to the Savings and Loan Society, for the benefit of all the plaintiffs. Held (in an action for a breach of the bond): The plaintiffs were properly joined. Appeal from a judgment for the plaintiffs and from an order denying a new trial in the Nineteenth District Court of the City and County of San Francisco. Wheeler, J. Action by Annie Daley and John H. Daley, her husband, and Savings and Loan Society against J. A. Cunningham et al. The complaint alleged that the plaintiffs Daley on the sixth day of June, 1874, executed a mortgage upon certain premises to the Savings and Loan Society to secure a promissory note, etc.; that on the tenth day of June, 1874, the defendant Cunningham entered into a written contract with the plaintiffs Daley to construct a building on the mortgaged premises; that at the same time, and in consideration of the said contract, the said Cunningham, as principal, and the other defendants, as sureties, executed and delivered to said Savings and Loan Society, for the benefit of plaintiffs, their certain bond, etc.; * * * that said bond was upon the express condition, thereunder written, that if the said Cunningham should well and truly complete his said contract, should save, harmless and fully indemnified, the said Annie and John H. Daley and the said Savings and Loan Society of and from all liens, claims, and demands arising or growing out of the furnishing of the material and labor for said buildings, then the said obligation should be void; otherwise that the same should remain in full force and virtue; that the defendant Cunningham failed to perform his contract, and that plaintiffs had been damaged thereby in the sum of six thousand dollars. J. E. McElrath, for Appellant. The demurrer should have been sustained for misjoinder of plaintiffs. The Daleys were the real parties in interest, and could alone sue on the bond. (§ 367, C. Civ. Proc.; Baker v. Bartol, 7 Cal. 551; Summer v. Farrish, 10 id. 347.) A. N. Drown, for Respondent. The demurrer for misjoinder of parties plaintiff did not lie. Both the Savings and Loan Society and the Daleys were real parties in interest. The building contract, the performance of which was secured by the bond, was entered into by the Daleys alone, hut the money, as we have seen, was to be paid by the Savings and Loan Society, whose security for repayment was a mortgage upon the land and buildings, which security would of course suffer by a non-completion of the inprovements, Accordingly, the bond was executed to the Savings and Loan Society for the benefit of itself and the Daleys, and for the protection of both. (C. C. P. §§ 378, 382, 389.) The Savings and Loan Society was, to a certain extent, that is, so far as it held the bond for the benefit of others, a trustee of an express trust—“ a person with whom or in whose name a contract was made for the benefit of another,” (Code Civ. Proc. § 369); it might perhaps, have sued without joining with it “the person for whose benefit the action is prosecuted.” But it was not compelled to do so. (Bliss on Code Pleading, §§ 52, 61, 73 and 75; Story’s Eq. Pl. 7 ed. §§ 72, 207, 218, 219.) [MAJORITY — The Court:] The Court: We do not think there was any misjoinder of parties plaintiff in this canse (C. C. P., 382), and are of the opinion that the demurrer on that ground was properly overruled. We find no error in the record, and the judgment and order are affirmed.