Kurtz

This is an action upon a bond alleged to have been executed by the defendants Forquer and Deyo as principals, and the defendants Allen, Smith, and Stewart as sureties, conditioned for the faithful performance by Forquer and Deyo, of a certain contract, by which they agreed to build and deliver to plaintiff, free of indebtedness, liens, etc., a certain house. Judgment went for plaintiff against Allen, Smith, and Stewart, and they appeal from the judgment, and from an order denying a new trial.

1. The bond purports to be the bond of all the defendants, but it was in fact signed only by Allen, Smith, and Stewart; and it is contended that it created no liability against appellants, because not signed by Forquer and Deyo. Sacramento v. Dunlap, 14 Cal. 421 , and People v. Hartley, 21 Cal. 585 , 82 Am. Dec. 758 , are cited to this proposition; but they are not in point, because in those cases the bonds sued on were strictly joint, and not several; while in the case at bar the obligation is expressly joint and several. (People v. Love, 25 Cal. 530 .) In such case the obligors “may all, or any of them, be included in the same action, at the option of the plaintiff (Code Civ. Proc., sec.…