Marsh Bros. & Gardenier, Inc. v. United States Fidelity & Guaranty Co.

This is an appeal by the defendant from a judgment rendered against it for $2,341.03 as damages suffered by reason of a temporary restraining order and injunction pendente lite issued in a certain action entitled Butters et al. v. City of Oakland, a Municipal Corporation, et al., wherein the United States Fidelity and Guaranty Company (a corporation), as surety, executed undertakings in the sum of $450 upon the restraining order and in the sum of $2,000 upon the injunction pendente lite.

Marsh Bros. & Gardenier, Inc., plaintiff and respondent herein, were awarded a contract to do certain street work in Oakland, Alameda County, under proceedings taken pursuant to what is known as the “Improvement Act of 1911” (Stats. 1911, p. 730), on the district plan, with serial bonds to be issued to represent assessments of $25 each or over for the cost of such work. The details of such proceedings are fully set out in the appendix to appellant’s brief, pages 2-11, paragraphs IY to XYI, inclusive. After this assessment was made the warrant, diagram and other necessary written instruments were recorded. An appeal was taken by certain property owners to the city council. After hearing thereupon,…