Ernst v. Cummings

Citations

• 55 Cal. 179

Syllabus

<p>Contract — Bond—Findings.— Tlie defendants, (one as principal, and the other as surety) executed a bond to the plaintiff, conditioned for the performance of a building contract, by tlio terms of which, the principal agreed to perform tho labor and furnish the materials for tho construction of tho building, and further agreed that no lions by mechanics, material-men, or laborers, should be filed against it; and the plaintiff agreed to pay seventy-five per cent, of the contract price during the progress of the building, upon certificates of tho architect, and the balance upon its completion. In an action upon tho bond, it appeared that liens were filed upon tho building by material-men, and that suits were brought and judgments recovered against the plaintiff and contractor for their foreclosure ; that plaintiff had paid all of the contract price but 5750, which had not become due at the time of the filing of the liens, and that ho paid this balance, and 5594 in addition, upon tho judgments; and the complaint alleged, and tho answer denied, that the surety (defendant) had seasonable notice of the pendency of the foreclosure suits, and that they were properly defended by the plaintiff; but tho Court failed to find upon these allegations. Held, that the issues were material, and should have been passed upon.</p> <p>Id.—Dependent Promises.—Held further, that the promise of 'the contractor to protect the building from liens, and the promise of the plaintiff to pay, were mutual and dependent, and that the plaintiff was authorized to retain tho 5750 to meet the liens.</p> <p>Id.—Id.—Where mutual promises go to the whole considerations on both sides they are concurrent and dependent, and neither party can claim performance, without performance on his part.</p>