Cunningham

This is an appeal from a money judgment in favor of plaintiff and against defendant Southland Construction Co., Inc. (sometimes hereinafter referred to as South-land) and Citizens Insurance Company of New Jersey, a corporation (sometimes hereinafter referred to as Citizens), the bondsman for Southland.

Cunningham brought the action for money, for the value of materials furnished to Southland on a job in the construction of a warehouse which Southland was performing for the County of Los Angeles. In count one of the complaint plaintiff alleges that in February 1963, Southland promised to pay Cunningham certain money for goods and merchandise sold to Southland; that Southland had refused to pay. The first cause of action is stated as a common count for material delivered and is not on a written contract.

In a second count of the complaint, plaintiff sued Citizens on the bond which Citizens had issued to the County of Los Angeles for Southland.

In the third count, plaintiff alleged that the County of Los Angeles was withholding sufficient money to pay plaintiff’s amount due and owing.

Southland answered the complaint by generally denying the allegations of Cunningham and by way…