Singer

The plaintiff, a materialman, furnished F. M. Singer, a contractor, with lumber to be used and which was used in the construction of a building on premises owned by defendant and appellant, Robert J. Walsh. The contractor having failed to pay for the lumber, the present action was brought against the owner of the premises to foreclose plaintiff’s claim of lien thereon and for a personal judgment against the contractor and defendants Charles Gust and R. O. Ostrander, who were sureties upon a bond filed by the contractor. Defendants Singer and Ostrander were not served with summons and the case was tried against Walsh and Gust. Judgment was entered against Gust for $4,000, the value of the lumber, and $1.77, the expense of filing the claim of lien, and against Walsh for the foreclosure of the lien and sale of the premises. The latter has appealed from the judgment.

The complaint alleged that the. bondsmen were not good or sufficient sureties at the time of the execution of the bond or thereafter. The bond, which was for $9,218, in addition to a condition for the performance by the contractor, was also, as provided by section 1183 of the Code of Civil Procedure, conditioned for the…