Shafer

This is an action against the contractor and his surety on a faithful performance bond given pursuant to the Street Improvement Act of 1913 (Stats. 1913, p. 954).

In May, 1917, the city of Los Angeles, after proceedings regularly taken, invited proposals for the' improvement of Oregon and Ezra Streets. The defendant M. T. Shafer submitted a bid to do the work for $4,487.84. The bid was accepted and the contract, which was awarded to him, was executed on June 16, 1917. On the same day the defendant Shafer and Maryland Casualty Company, as his surety, executed a bond in the sum of $1,125 for the faithful performance of the contract, as required by section 9 of said act. The city then proceeded to ascertain the damages to private property by reason of the proposed improvement and to levy and collect an assessment sufficient to pay the damages and the contract price. On December 22, 1917, the city, through its board of public works, caused a notice to be deposited in the United States mail, addressed to the defendant contractor at 220 West Thirty-third Street, Los Angeles. This street number was the address placed by Mr. Shafer on his bid when the same was submitted by him in May.…

We concur in the judgment of reversal on the ground that there is no evidence tó support the finding that the sum named in the bond was agreed upon as liquidated damages. That instrument is a statutory .undertaking, and should, therefore, be construed in the light of the statute, which declares that if the contractor abandons the work or fails to proceed with it as rapidly as required by his contract, the city may hold him and his sureties responsible on the bond for the cost of any new contract that may be relet by it, for the expenses incurred in reletting the contract, and for “any damages resulting from such abandonment.” (Stats. 1913, pp. 959, 960.) The damages thus referred to are actual damages, and the statute, therefore, contemplates the recovery of no more than the damages actually sustained, including the costs and expenses incurred in reletting the contract. It follows that the amount of the city’s recovery must be measured by its actual damage; and since respondent failed to prove the amount of its actual damages, if any were sustained, there is no basis for the judgment.