W. W. Montague & Co. v. Furness
W. W. MONTAGUE & CO., Respondent, v. JOHN FURNESS Et Al., Appellants
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of the City and County of San Francisco
- Trial judge
- Thomas F. Graham
- Outcome
- reversed — the judgment be reversed.
- Area
- civil
- Panel
- Gray (author)
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion — Gray
GRAY, C.
This action is brought against a building contractor and his sureties upon a bond alleged in the complaint to have been “given under and in pursuance of the provisions of section 1203 of the Code of Civil Procedure of this state.” Plaintiff seeks to recover the amount due it from the contractor, Furness, for certain materials furnished by plaintiff for use in constructing the building to which the bond relates. The plaintiff had judgment against all the defendants, and the sureties on the bond appeal from said judgment.
The said section 1203 of the Code of Civil Procedure is unconstitutional, and the bond having been given in pursuance of it cannot be upheld even as a common-law obligation, and is void. Therefore, the sureties on it were not liable. It was so held in the two recent cases of San Francisco Lumber Co.
v. Bibb, 139 Cal. 193, and a ease of the same title, 139 Cal. 325. In both of these cases the action was upon the identical bond sued on here, by parties furnishing material just as in this case. The decisions in those eases dispose of the only question that need be decided on this appeal—to wit, the constitutionality or unconstitutionality of said section 1203 of the Code of Civil Procedure. Nothing need be here added to what is said in those cases.
We advise that the judgment be reversed.
Cooper, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment appealed from is reversed.
McFarland, J., Lorigan, J., Henshaw, J.
Cites, in this corpus
- San Francisco Lumber Co. v. Bibb S.F. No. 3041. · 1903-06-15
- San Francisco Lumber Co. v. Bibb S.F. No. 3042. · 1903-06-02
Cited by
- Lamb v. National Surety Co. Docket No. 6091. · 1930-09-15
- Roystone Co. v. Darling L. A. No. 4072. · 1915-12-15
- Martin v. McCabe Civ. No. 1052. · 1913-04-04
- Republic Iron and Steel Co. v. Patillo Civ. No. 1016. · 1912-06-20
- Quartaroli v. City of Sonoma Civ. No. 889. · 1912-02-29
- Downing v. Donegan No. 73. · 1905-10-07