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W. W. Montague & Co. v. Furness

W. W. MONTAGUE & CO., Respondent, v. JOHN FURNESS Et Al., Appellants

W. W. Montague & Co. v. Furness, 78 P. 640 (Cal. 1904)
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Court
California Supreme Court · State Highest Courts
Decided
October 31, 1904
Docket
No. S.F. No. 2938.
Judges
Gray
Citations
78 P. 640145 Cal. 2051904 Cal. LEXIS 569
Cited by 9
Headnotes
Building Contract — Void Bond of Contractor — Unconstitutional Section of Code.—Section 1203 of the Code of Civil Procedure is unconstitutional, and a bond given in pursuance of it under a building contract is void, and cannot be upheld as a common-law obligation.
Summary
The facts are stated in the opinion.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Gray

GRAY, C.

This action is brought against a building contractor and his sureties upon a bond alleged in the complaint to have been “given under and in pursuance of the provisions of section 1203 of the Code of Civil Procedure of this state.” Plaintiff seeks to recover the amount due it from the contractor, Furness, for certain materials furnished by plaintiff for use in constructing the building to which the bond relates. The plaintiff had judgment against all the defendants, and the sureties on the bond appeal from said judgment.

The said section 1203 of the Code of Civil Procedure is unconstitutional, and the bond having been given in pursuance of it cannot be upheld even as a common-law obligation, and is void. Therefore, the sureties on it were not liable. It was so held in the two recent cases of San Francisco Lumber Co.

v. Bibb, 139 Cal. 193 , and a ease of the same title, 139 Cal. 325 . In both of these cases the action was upon the identical bond sued on here, by parties furnishing material just as in this case. The decisions in those eases dispose of the only question that need be decided on this appeal—to wit, the constitutionality or unconstitutionality of said section 1203 of the Code of Civil Procedure. Nothing need be here added to what is said in those cases.

We advise that the judgment be reversed.

Cooper, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the judgment appealed from is reversed.

McFarland, J., Lorigan, J., Henshaw, J.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 9 cases

View all citing references →
1905: 11907: 11912: 21913: 11915: 11917: 11927: 11930: 119052026peak 1912 · 2

Relies on it most ⓘ

  1. Rio Grande Lumber Co. v. Darke167 P. 241 (Utah 1917)
  2. United States Fidelity & Guaranty Co. v. Parsons112 So. 469 (Miss. 1927)
  3. Republic Iron and Steel Co. v. Patillo125 P. 923 (Cal. Ct. App. 1912)
  4. Lamb v. National Surety Co.291 P. 647 (Cal. Ct. App. 1930)
  5. Martin v. McCabe132 P. 606 (Cal. Ct. App. 1913)
  6. Quartaroli v. City of Sonoma123 P. 533 (Cal. Ct. App. 1912)

Most recent

  1. Lamb v. National Surety Co.291 P. 647 (Cal. Ct. App. 1930)
  2. United States Fidelity & Guaranty Co. v. Parsons112 So. 469 (Miss. 1927)
  3. Rio Grande Lumber Co. v. Darke167 P. 241 (Utah 1917)
  4. Roystone Co. v. Darling154 P. 15 (Cal. 1915)
  5. Martin v. McCabe132 P. 606 (Cal. Ct. App. 1913)
  6. Republic Iron and Steel Co. v. Patillo125 P. 923 (Cal. Ct. App. 1912)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
San Francisco Lumber Co. v. Bibb, 73 P. 864 (Cal. 1903) 18
San Francisco Lumber Co. v. Bibb, 72 P. 964 (Cal. 1903) 12

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