Fraters Glass & Paint Co. v. Southwestern Construction Co.

This is an appeal from a judgment against the sureties on an indemnity bond which was given pursuant to section 1183 of the Code of Civil Procedure, to secure the payment of the- contract price of material furnished to the contractor in the construction of a building at Los Angeles.

The appellants claim they were released from the obligations of the undertaking to the extent of $4,000, on account of a mistake on' their part with respect to the terms of the bond, which mistake, they allege, was known to the respondents. A reformation of the instrument is sought pursuant to the provisions of section 3399 of the Civil Code.

A former trial of this cause resulted in a judgment for these appellants, which was reversed upon appeal for the erroneous admission of parol evidence regarding an alleged former oral agreement which is in conflict with the terms of the undertaking. (Fraters G. and P. Co. v. Southwestern C. Co., 200 Cal. 688 [ 254 Pac. 1097 ].) The facts appear in greater detail in the opinion of the court which was rendered on that appeal.

Upon the present retrial of the case, by leave of court, the answer was amended to affirmatively allege that appellants executed the bond…