Union MacHine Co. v. Chicago Bonding & Surety Co.

This is an appeal from a judgment in favor of the plaintiff upon a guaranty executed by the defendant.

The appeal is without merit. The facts are briefly these: Plaintiff entered into a contract with the Western Reclamation Company to make certain repairs on and to construct new parts for a dredger. Part of the work under the contract had been performed, and plaintiff was entitled to the contract price therefor. When the balance of the work was ready for delivery the plaintiff refused to install the same until it should be paid in full for all the work. The Western Reclamation Company was unable to make payment at the time, and prevailed upon the plaintiff to perform the balance of the work upon the execution by the defendant of a written instrument by the terms of which the latter guaranteed the payment of all bills against the Western Reclamation Company for the work done on the dredger under the contract, the same to be paid at stated periods.

We do not doubt that the plaintiff had a perfect right to retain possession of the undelivered part of the work until the purchase price of all the work was paid. (Civ. Code, secs. 3049 and 3051.) It follows that by the delivery of the…