119 P. 957

EARL A. WILSON, AMOS TOWNE, GEORGE L. CURTIS and ALBERT E. CURTIS, Copartners, etc., Appellants, v. THE FIRST NATIONAL BANK OF LONG BEACH, Respondent.

Civ. No. 1047.Court of Appeal of California, Second District.
November 7, 1911.

Page 391

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge.

The facts are stated in the opinion of the court.

Denio Hart, for Appellants.

John E. Daly, for Respondent.

JAMES, J. —

A general demurrer, to an amended complaint filed by plaintiffs, was sustained and leave to further amend was denied. Thereupon judgment was rendered for defendant, from which plaintiffs appeal. In this amended complaint it was alleged that one E. L. Plantico, on August 1, 1906, entered into a contract with certain property owners of the city of Long Beach, wherein it was agreed that Plantico was to construct certain bulkheads and sidewalks, and erect electrical street lamps along a boulevard in front of the property of the other contracting parties; that Plantico then engaged plaintiffs, as subcontractors, to do certain of the electrical work, and that, before plaintiffs entered upon the doing of this work, Plantico assigned the main contract, which he had made with the property owners, to the defendant bank. Plaintiffs then allege, on information and belief, that the assignment so made by Plantico to the bank was “upon the consideration and understanding that said defendant corporation would hold said contract and collect the moneys to become due thereunder from the respective property

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owners as the same became due under the terms of said contract, and pay materialmen and subcontractors from the proceeds thereof, and apply the balance, if any, to certain obligations owed by said E. L. Plantico to said defendant bank.” This allegation follows: “That thereafter, and before commencing work under their said contract with said E. L. Plantico, these plaintiffs went to said defendant corporation, and refused to proceed with said work except upon the condition that said defendant corporation collected the moneys to become due under the terms of said contract, and would pay over to these plaintiffs the moneys to become due to them upon the completion of said contract by them made with said E. L. Plantico, as aforesaid, and was assured by said defendant corporation that it would do the same; that upon such assurance plaintiffs thereupon commenced work under their said contract made with said E. L. Plantico, as aforesaid, and completed the same according to its terms.” There was the further allegation that the amount which had become due to plaintiffs under their contract was the sum of $2,465.84, and that of this amount $1,240, and no more, had been received by way of credit from defendant bank, and that the defendant had refused to make further payments thereon. It was also alleged on information and belief that the defendant bank had collected on account of money due under the contract assigned to defendant by Plantico more than enough money to pay all claims of subcontractors and materialmen. Under the alleged terms of the assignment made by Plantico to the bank, the latter became charged with the responsibility of satisfying the claims of the materialmen and subcontractors before applying any of the proceeds received upon that contract to its own account. As we view the amended complaint, sufficient facts are stated to constitute a cause of action, although there appears to be some uncertainty as to whether plaintiffs intended to rely upon the assurance of the bank that it would see them paid, as a distinct and original contract on the part of the bank or upon the agreement of the bank which formed a part of the consideration for the assignment made by Plantico, that moneys collected upon the main contract should be first applied in extinguishment of the claims of the materialmen and subcontractors. We think, however, that the pleading is

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reasonably susceptible of the construction that plaintiffs did not intend to allege a separate contract on the part of the bank, made with them by way of guaranty, but that, all of the allegations considered, the pleading should be construed as intending to set forth only the cause of action based upon the liability of the bank under the assignment of Plantico, which was made in part for the benefit of these plaintiffs. Construed in that way, no other effect need be given to the allegations referring to the assurance given by the bank to plaintiffs, that it would see them paid, than to treat that allegation as meaning only that the defendant assured plaintiffs that it would comply with the terms of its agreement with Plantico to first pay out of moneys collected on the contract assigned to it the demands of the materialmen and subcontractors. A demurrer for uncertainty might properly have been urged against the complaint, but no such ground of demurrer was made by the defendant, and that objection must therefore be deemed to have been waived. We think that the demurrer should have been overruled.

The judgment is reversed.

Allen, P. J., and Shaw, J., concurred.