Lamb

The plaintiff entered into a contract with the defendant Wahlenmaier for the construction of a building in Los Angeles at the agreed price of $6,277, and at the same time Wahlenmaier and his co-defendant, the Fidelity and Deposit Company, of Maryland, as his surety, executed a bond to the plaintiff for the faithful performance by him of his contract. The bond provided that Wahlenmaier should also cancel and release the building from all claims or liens that might accrue against it from the performance of the contract, and should save the plaintiff herein harmless from all damage thereby. Wahlenmaier abandoned work upon the building before it was completed, and thereafter the plaintiff finished its construction. The plaintiff paid to Wahlenmaier $2,577 before he abandoned the work, and afterwards paid $4,360 in discharge of liens for materials and labor furnished and employed in its construction at the request of Wahlenmaier. The present action is brought upon the above-named bond to recover the amount paid by the plaintiff in discharge of liens in excess of the contract price for constructing the building.

The contract for the construction of the building was not filed in the…