Jones

Action by plaintiff against a contractor and his surety to recover balance of agreed price of materials furnished and installed by plaintiff in a public service building erected by defendant Jones, as general contractor, under a contract with the city of Glendale. The work was fully completed May 20, 1929, and complaint was filed January 9, 1931. A demurrer filed by defendant Central Surety and Insurance Corporation on the ground that the action was barred by section 2 of the Act of May 10, 1919, amended May 22, 1925 (Stats. 1919, p. 487; Stats. 1925, p. 539), was sustained by the court with leave to amend. A similar demurrer was also interposed by said defendant to the amended complaint filed by plaintiff, which demurrer was sustained without leave to amend and judgment thereafter entered dismissing the action as to the demurring defendant.

Plaintiff has appealed, and contends that its complaint states a cause of action on the faithful performance bond given to the city of Glendale under the contract, even if the labor and material bond is a statutory bond and the action on it barred by said section.

The amended complaint alleges the execution of two bonds. The first binds said…