Woodhead Lumber Co. v. E. G. Niemann Investments, Inc.

an action commenced in Los Angeles County against the owner and its surety for the alleged value of services and materials furnished in construction of an apartment house, judgment was rendered in favor of the plaintff and against the surety. The appellant assigns an asserted insufficiency of the evidence as a ground for reversal.

It is conceded by the parties that the pivotal question to be determined is whether payment to the respondent had been made by the owner. A building loan on said premises was secured by a first deed of trust, and was followed in order of execution and'record by a promissory note and second deed of trust which was executed by the owner in favor of the respondent. The latter was also indemnified by the appellant upon condition that the principal should fail to “pay in full the claims of all persons performing labor upon or furnishing materials to be used in such work”. It is the appellant’s contention that said second deed of trust and note thereby secured constituted payment for the materials and services furnished and that the finding of the trial court that said amount was due, owing and unpaid was erroneous. It appeared that in pursuance of its…