Klokke

This is an action to recover upon a bond signed by appellant as one of the sureties and given to secure the performance of a builder's contract, which, among other provisions, contained the following: "The contractor shall, on or before thirty-five days after the acceptance of the building, cancel and release the said building and premises from all claims that may have accrued against the said building by reason of the aforesaid erection." The condition of the bond was that if the contractor should strictly keep and perform all the covenants of the contract by him to be kept and performed, and should on or before thirty-five days after completion of the building cancel and release the said building from all liens that might have accrued against the same in and by reason of the performance of said contract, and should save the owner free and harmless from all damages therefrom, as in said contract provided, the bond should be void. It was provided in the contract that the cost of the building should be paid in installments, of which the sum of $558.75 was payable on completion, and $1,117.50 payable *Page 3 thirty-six days thereafter. The building was completed according to the…

In the petition for a rehearing filed herein our attention is directed to a fact overlooked in the opinion. The judgment rendered includes the amount of $28.90, which sum as shown by the evidence was paid by plaintiff to his attorney as costs and not for legal services rendered. No *Page 7 claim is made for money expended as costs; therefore, under the pleadings, plaintiff's right to recovery is measured by the sum actually expended by him for attorneys' fees only. This sum, as appears by the evidence, was $360. It follows that the inclusion of the $28.90 by plaintiff paid out as costs was unwarranted. It is not necessary, however, to reverse the judgment or order a new trial, as the error may be corrected by a modification of the judgment. ( McConnell v. Corona City Water Co., 149 Cal. 60 , [ 85 P. 929 ].) It is therefore ordered that the judgment be modified by deducting therefrom as of the date of its rendition the sum of $28.90, and as thus modified it is affirmed. The petition for rehearing is denied. Allen, P. J., and Taggart, J., concurred. A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme…