City of Oakland v. De Guarda

This is an action to recover against a defendant street contractor and a defendant surety company upon a statutory surety bond given by the defendants for the faithful performance of a contract for street improvement in the City of Oakland under the provisions of the Street Improvement Act of 1911 (Stats. 1911, p. 730).

Two counts are pleaded in the complaint; the first being on behalf of the City individually, and the second by the City as trustee for the property holders in the assessment district.

The defendant contractor, De Guarda, made default and judgment was rendered against him and no appeal taken by him. The defendant, National Surety Company, interposed a general and special demurrer to the two causes of action stated in the complaint. The demurrer to the first cause of action was overruled with leave to answer. But defendant’s demurrer to the second cause of action was sustained without leave to amend. Defendant, National Surety Company, having failed to answer as to the first cause of action within the time allowed, judgment was entered against the defendant on the first cause of action; and as to the second cause of action, the plaintiff not having been granted…