Watterson

There are two appeals presented for our consideration in this case; one an appeal from the judgment, the other an appeal from an order refusing to set aside the said judgment and permit the plaintiff to file an amended complaint. A review of the history of the litigation is essential to the proper determination of both appeals. The litigation arose out of the construction, alteration and repair of the Owens River canal in the county of Inyo. A written contract had been entered into between the defendant herein and one Snyder for the performance of said work for the stipulated price of $19,000; said Snyder was required by the terms and conditions of said contract to furnish an undertaking for the due performance of said work, and the plaintiff herein became his surety upon such undertaking. The contract with Snyder was not recorded. Snyder, having failed to perform, the plaintiff took over the work remaining to be done under said contract and completed the same. Having done so, he undertook to assert a lien for the amount due for his said work under the provisions of section 1183 of the Code of Civil Procedure, providing that in the absence of the recordation of such a contract it…