The suit involved in the present appeal was brought by the appellees to recover from the appellant, as surety, damages sustained by the former as a result of the alleged breach of the obligations of a bond guaranteeing the faithful performance of a subcontract for the welding of a pipe line between Kettleman Hills and Panoche Hills, Cal.

On March 9, 1929, the Pacific Gas & Electric Company, as “owner,” entered into a contract with the appellees, as “general contractor,” for the construction of a high-pressure gas pipe line approximately 149 miles in length, from Buttonwillow, in Kern county, to Tres Pinos, in San Benito county.

The work was divided into three sections. Section 2, which alone is involved in the present action, was approximately 41 miles long, and extended from Kettleman Hills to Panocho Hills.

On April 11, 1929, the appellees, as general contractor, and Smith and McComber, as “subcontractor,” entered into a subcontract whereby the latter firm agreed to do all the welding work on section 2 at the rate of 28Mi cents per linear foot.

By the terms of the latter contract the appellees were to dig the ditch and lay the pipe on skids, and the subcontractor was thee to do everything necessary to the tacking, welding, angling, and the final welding of all pipe and fittings. Thereafter the general contractor was to lower the pipe into the ditch and cover it. The subcontractor agreed to furnish all labor necessary for the welding of the pipe line during the process of welding, tacking, and tying-in, together with all material required therefor, and was to complete the work in accordance with the specifications and conditions of the Pacific Gas & Electric Company.

The subcontract referred to the general contract, and by reference made the latter a part of the former. The subcontract required the subcontractor to furnish a faithful performance bond, and, accordingly, on April 11, 1929, the subcontractor, as principal, and the appellant, as surety, executed in favor of the appellees a bond in the penal sum of $61,300, guaranteeing the faithful performance of the work to he done under the subcontract.

The bond contained the following provisions pertinent to the present controversy:

*902 “2. That, as a condition precedent to the ■right of recovery hereunder, the Owner shall notify the Surety, either at its principal office in New Orleans, Louisiana, or at its office in Los Angeles, California, of any breach by the Principal of said contract, and also of any act, or omission, on the part of the Principal, or any agent or employee of the Principal which may cause a loss for which the Surety may become liable hereunder immediately after such breach or act or omission shall have come to the knowledge of the Owner or to any representative of the Owner authorized to supervise the performance of said contract.”

Both the general contract and the subcontract provided that the work should be done at an average rate of “not less than three quarters of a mile per working day.” The general contract set forth that the contractor was to commence work “as soon as notified by the Company. [Pacific Gas & Electric] so to do and shall prosecute said work simultaneously along the three sections.” The subcontract required that the subcontractor should “actually start operations under this contract on or before the 29th day of April, 1929.”

Both contracts set forth that “Time shall be the essence of this agreement.” This does not only appear in the agreements as a mere pro forma expression, hut it is iterated and paraphrased with such emphasis as to leave no doubt regarding the intention of the parties.

Although, as we have seen, the subcontract provided that the subcontractor should' actually start operations on or before April 29, Smith and MeComber commenced work the early part of May, "and were “slow in getting started.” Howard Lang, one of the appellees, testified that his firm “kept after” the subcontractor to “speed it up.”

On June 7, 1929, Lang had a telephone conversation with R. S. Puller, engineer of distribution of the Pacific Gas & Electric Company, in which Puller expressed himself as “very much disgusted” with the lack of progress being shown in connection with the welding. Puller confirmed the conversation in a letter dated June .8, 19291, in which were contained the following statements:

As. a result of the telephone conversation with Puller, the appellees, on June 7, wrote to Smith and MeComher in part as follows:

The appellees sent a copy of the above letter to the appellant, together with a letter of transmittal dated the same day. This was the first notice received by the appellant from the appellees of any failure on the part of the subcontractor to prosecute the work as required by the terms of the subcontract.

Thereafter the appellees placed their crew on the southern end of section 2 of the pipe line and commenced work. JJntil about July 29, 19291, both the appellees’ crews and the *903 subcontractor's crews were engaged in the performance of the welding work on that section'.

On July 13, 1929, Joe Crider, Jr., attorney for the appellees, sent to the appellant a telegram notifying the surety company that the subcontractor was in default, and demanding that the appellant, meet Smith and Me-Comber’s pay roll.

On July 15, 1929) the appellees received a. telegram from the subcontractor containing the information that the latter was unable to meet labor claims, had turned over its pay roll to the Labor Commission, and was unable to complete the contract. This telegram was confirmed by letter the following day, and still later orally by a member of the subcontractor firm.

The subcontractor finally abandoned the work on or about July 20, 1929, and the appellees completed the welding work on section 2 on or about August 20, 1929.

The present action was commenced by the appellees to recover the cost of completing the work covered by the subcontract, and the amounts paid out for labor and materials for the account of the subcontractor. Judgment was rendered in favor of the appellees for $40,358.99, with interest and costs.

From that judgment the present appeal was taken.

The appellant asserts that the appellees were “far in default in the time for performance of the welding work on Section 2 of the pipe line at the time the subcontract was made on April 11, 1929.” In our view of the case, however, it is unnecessary to consider this phase of the ca se.

We will therefore confine our inquiry to the question of whether or not the appellees failed to notify the surety company of any breach by the subcontractor, “and also of any act, or omission” which might have caused “a loss for which the surety [might] become liable hereunder.”

From the appellees’ own testimony, it is evident that, almost from the very beginning of their dealings with the subcontractor, they were aware not only of its failure to live up to its business engagements, but also of its essential inability to do so. It is difficult to understand why, knowing the situation as they did, the appellees, as a matter of ordinary business prudence, did not notify the surety of the subcontractor's evident deficiencies. The appellees knew full well that, in case the subcontractor defaulted, they themselves would be held accountable by the Pacific Gas & Electric Company.

Exactly one month before the appellees sent the first notification to the appellant that the subcontractor was not fulfilling its contract, Howard Lang, according to his own testimony, saw that Smith and MoComber’s welding equipment was not, in Ms opinion, “sufficient to do three-quarters of a mile of welding per day on this 22 inch line.”

This was not a mere vague impression entertained by Lang, but was supported by definite data:

“Smith and McComber had one tractor, a caterpillar tractor, hut it had no crane or boom attachment on it with which to- handle this pipe. In completing the welding work on Section 2 of the line, Lang Transportation Company used two 60 Best Caterpillars, and even that was not sufficient to enable the reasonable completion of three quarters of a mile of welding of that 22 inch pipo per day.” But the amazing record of the appellees’ failure to disclose the facts to. the surety company antedates even Lang’s observation of the subcontractor’s deficiencies as to welding equipment.

Lang testified:

Again Lang testified:

In other words, almost from the very beginning the appellees knew that the subcontractor was slow; that it had inadequate equipment; that one partner did not know) “what it was about”; that the other partner quit the job shortly after it was commenced; that the firm’s “key man” was a drunkard; and that the subcontractor’s organization seemed to be “loose.”

Yet for more than five weeks from April 29, 1929, the day on which the subcontractor should have commenced its welding work, the appellees said not a word to the appellant.

It is contended, however, that “The surety has not shown that it has been prejudiced in any way whatsoever because the appellees did not give notice prior to June 7, 19291.”

It therefore becomes necessary to inquire whether or not, when seasonable notice is made a condition precedent to the surety’s liability, the fact that the surety was not prejudiced by its failure to receive such notice is material.

In the instant ease, the contract of suretyship was entered into and was to be performed in the state of California. Accordingly, this court will apply the doctrine adopted by the courts of that state.

In Community Bldg. Co. v. Maryland Casualty Co. (C. C. A.) 8 F.(2d) 678, 680 ; certiorari denied 279 U. S. 652 , 46 S. Ct. 351 , 70 L. Ed. 782 , the late Judge Gilbert, of this court, said:

“From the foregoing considerations we reach the conclusion that, in determining the rights of litigants arising out of a contract of suretyship such as this, made and to be performed in the state of Washington, a federal court should follow the rule established by the highest court of that state.”

Citing with approval the foregoing decision by this court, Mr. Justice Sutherland, in Trainor Co. v. Ætna Casualty & Surety Co., 299 U. S. 47, 54, 55 , 54 S. Ct. 1, 2 , 78 L. Ed. -, used the following language:

See, also, Ramsey & Gatlin Construction Co. v. Vincennes Bridge Co., 283 U. S. 796, 797 , 51 S. Ct. 484 , 75 L. Ed. 1420 , where Judge Gilbert’s decision was likewise cited with approval, and Consolidated Cut Stone Co. v. Hartford Accident & I. Co. (C. C. A. 10) 62 F. (2d) 975, 976.

There can be no question that the legal principle for which the appellees contend is “balanced with doubt,” to say the least. Indeed, the appellees seem to concede that there is conflict among the decisions.

“The eases cited by appellant to the effect that failure to give notiee as required by the terms of a hond prevents recovery, are based upon the ancient rule of strictissimi juris. In recent years the courts have been rather reluctant towards applying the rule of strictissimi juris to compensated sureties.”

Therefore, under the doctrine approved in the recent Trainor Case, supra, when we find conflict among the decisions of various juris-’ dictions on the law of suretyship, we are not called upon to determine what is the weight of authority; we must look to the decisions of .the highest appellate courts in the state where the contract of suretyship was executed and was to be performed.

In ascertaining the rule in California, however, we need not rely solely upon court decisions; for we find certain statutes to guide us to a proper conclusion.

Dealing with the law of insurance, section 2611 of the Civil Code of California, provides:

*905 Two other pertinent sections follow:

The foregoing provisions seem to indicate that the rule of strietissimi juris is to be followed in California in the interpretation of conditions precedent in a contract of surety-ship.

The decisions of the highest appellate courts of the state bear out this view.

¿2] The case of Roberts v. Security T. & S. Bank, 196 Cal. 557, 564, 586 , 238 P. 673, 676 , quoted by the appellees themselves, in reality contains considerable language opposed to their contention:

Applying the foregoing language to the contract of suretyship that we are now considering, we are impelled to the conclusion that the rule of strietissimi juris should govern hero. To read into- the provision, “That, as a condition precedent to the right of recovery hereunder, the Owner shall notify the Surety,” etc., the qualification that notice is a condition precedent to the surety’s liability only if the surety is prejudiced by failure to receive such notice, is, we believe, attempting to hold the surety “beyond the express terms of his contract,” “distorting words beyond their natural meaning,” reading something “into the contract that it will not reasonably bear,” and imposing “a burden not clearly inferable from the language of the contract.” See, also, Llewellyn Iron Works v. Reed, 123 Cal. App. 607, 613 , 11 P.(2d) 657.

Early in the history of California jurisprudence, the Supreme Court of the state indicated its adherence to the principle of strietissimi juris in construing contracts in the nature of suretyships. In Bensley v. Atwil!, 12 Cal. 231 , 239’, 240, the court said:

The same rule has been repeatedly «stated in negative form by the Supreme Court of California. In Carpenter v. Furrey, 128 Cal. 665, 668 , 61 P. 369, 370 ; it was said:

“Nor, in the absence of a contract to that effect, is a notice ever required to fix the liability of either a surety or guarantor.”

See, also, Cobum v. Brooks, 78 Cal. 443, 447 , 21 P. 2 ; Treweek v. Howard, 105 Cal. 434, 441 , 39 P. 20 .

In Schwab v. Bridge, 27 Cal. App. 204, 200, 207 , 149 P. 603, 604 , the doctrine of strietissimi juris with reference to conditions precedent as to notice and other matters, was emphatically elaborated upon by the eonrt:

*906 “A contract of suretyship is to he construed the same as other contracts for the purpose of determining- the intention of the parties. To ascertain this intent resort is first had to the contract itself; and if the intention of the parties is doubtful under the terms of the instrument, resort may he had to the surrounding circumstances to determine its meaning. Here the words employed are in themselves express and -precise, and clearly support the contention of the defendant, that presentation of the account due and within the time specified was intended as a condition precedent. ■ The language of the proviso expressly declares that liability will accrue, provided the amount may he due and presented December 3, 1905. Where a contract of suretyship stipulates that notice shall he given to the surety of the principal’s default, failure to comply with the condition or to give notice within the lime specified will prevent recovery from the surety (United States Fidelity & G-. Co. v. Rice, 148 F. 206 , 78 C. C. A. 164 ; 32 Cyc. 176, and eases cited). While it is true that conditions precedent are not favored by the law, and are to be strictly construed against one seeking to avail himself of them (Antonelle v. Kennedy & Shaw Lumber Co-., 140 Cal. 309L-315, 73 P. 966 ), it is equally true that parties to a contract may, if they think proper, agree that any matter shall be a condition precedent; and if words are used in the contract so-precise, express, and strong that such intention only is compatible with the terms employed, a court can only give effect to such declared intention of the parties. The only question in every ease is whether such intention is so declared; and where such intention is sufficiently expressed to make the fulfillment of the act a condition precedent, it will be one. 2 Elliott on Contracts, § 1580; National Surety Co. v. Long, 125 F. 887 , 60- C. C. A. 623.” (Italics our own.)

See, also, Los Angeles Athletic Club -v. Fidelity, etc., Co., 41 Cal. App. 439 ; 446, 183 P. 174 ; Éaston v. Boston Investment Co., 51 Cal. App. 24 &j 249, 250, 196 P. 796 .

The only California ease referred to by the appellees in connection with the question of notice as a condition precedent is Sherman v. American Surety Co., 178 Cal. 286 ; 290, 291, 173 P. 161, 162 ,'from which the following language is quoted in the brief:

But a study of the foregoing decision discloses that it is in no way apposite here. The language quoted had no reference to notice of default as a condition precedent, but was used in discussing the surety’s contention that the words “materials or supplies,” as used in a statute, “should he construed as referring only to those things which enter into and become component parts of the completed structure.”

We believe that the decisions of the highest courts of California have recognized the principle of strietissimi juris in connection with notiee of default; breach, or any act or omission that might cause a loss for which the surety'might become liable, regardless of whether or not the surety has been in fact prejudiced by failure to receive such notice.

Since, therefore, the appellees were well aware of the various acts and omissions of the subcontractor that might cause a loss for whieh the surety might become liable and for five weeks failed to notify the surety of such acts and omissions, we hold that the appellees failed to comply with a condition precedent of the bond, and cannot recover thereon.

Accordingly, the judgment of the court below is reversed.