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

[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. [MAJORITY — BISHOP, J., pro tem.] BISHOP, J., pro tem. 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 . . . ” 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.