Martin

A demurrer was sustained to plaintiff’s complaint, and from the judgment entered thereon the appeal is taken. The action was brought upon a bond given by contractors for the erection of a certain building. Various claims were assigned to plaintiff and it appears that the assignor in each instance furnished building materials to be used, and which were actually used, in the construction of said building. The bond was executed by J. J. McCabe, T. P. Cavanaugh, A. S. Cleary, and Patrick Segrue, and was in form as follows:

Appellant states that “It is conceded by both parties that section 1203 of the Code of Civil Procedure, requiring the execution and filing of a good and sufficient bond, pursuant to its provisions, is void. It was so expressly declared in the case of Gibbs v. Tally, 133 Cal. 373 , [60 L. R. A. 815, 65 Pac. 970 ], which ease now stands as the settled law of this case upon this question. We rely for relief upon the principles stated in the case of People’s Lumber Co. v. Gillard, 136 Cal. 55 , [ 68 Pac. 576 ].” The bond therein considered was quite similar to the one herein involved and the court said of it: “The bond no doubt was made pursuant to the statute. But it…