applications are addressed to the sound legal discretion of the court below, and its conclusion will not be disturbed here, except it should clearly appear that its discretion has been abused. In this case there is evidence which, if true, shows that on the evening of the day the divorce was granted, the plaintiff and one Buker proceeded to Reno, in the state of Nevada, and there intermarried, and ever since have been husband and wife; that plaintiff has a child, the issue of said marriage, which requires much of her time and attention; that after her marriage with Buker she consented that the custody of the child be given to Mrs. Bailard, her mother; that she has received the twenty dollars per month since the order has been in force for that sum, and has paid her mother less than five dollars per month of the amount, using the balance herself. On one occasion she said she had another twenty-dollar piece of Dick Crater's, the old s of a

b

Her husband said that he received the twenty dollars per month, and did not have to work.

The child at the time of the hearing of this motion was only about three and a half years old, but had learned to swear and use vulgar language. Plaintiff did not testify at the hearing, nor show that she intended to take the child to her own home. The defendant appears to be a man of some means, industrious, and of good character. The child is his only child, and he is amply able, and expresses his desire to take care of it and properly educate it. It is evident that the money paid for the support of the child by defendant should be used for its support, and not for the support of a new family acquired by plaintiff since her divorce from defendant.

The court was not required to instruct itself by adopting requested propositions of law, nor was it required to make findings of fact.

The order should be affirmed.

Haynes, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the order Garoutte, J., Van Dyke, J., Harrison, J.

is affirmed.

[L. A. No. 1014. Department One.-February 28, 1902.]

MALCOLM H. FRENCH, Respondent, v. CHARLES L. POWELL and NATIONAL SURETY COMPANY, Appellants.

CONTRACT For State or CITY WORK-CLAIMS FOR MATERIALS AND LABOR -CONSTRUCTION OF STATUTE-MATURITY OF ACTION UPON BOND.The act of March 27, 1897, which provides for the filing of verified claims for materials furnished or labor done for the contractor under a contract for building, excavation, or other mechanical work for the state, or for any city, is distinct from and independent of the general mechanics' lien law, and the surety on the contractor's bond provided for in the act, may be sued by a material-man or laborer, as soon as the contractor may be sued by them, provided the claim is filed within thirty days after the debt is due from the contractor; and the debtor is not required to wait for the final completion of the work by the contractor.

ID.-DEFINITION-MEANING OF "WITHIN.”—The word “within,” used in the statute, means "not beyond," and any act is "within" the time named therefor, when it does not extend beyond it.

ID. ASSIGNMENT OF CONTRACT-CONSENT OF SURETY AND OF CITYSURETY NOT RELEASED.-Under a contract for city work, the original contractor for the work cannot shift the burden of the obligation of the bond to material-men and laborers by assigning the contract, with the consent of the surety and of the city, without the consent of the parties entitled to sue upon the bond.

ID. EXCAVATION OF TUNNEL-TEAMSTER, HORSES, AND SCRAPER-SERVICES OF BLACKSMITH-VALIDITY OF CLAIM.-Where, by the terms of the bond, the obligors contracted to pay for "any work of any kind" done for the excavation of a tunnel contracted for, the claims of one who furnished a teamster and horses and scraper for the work, at an agreed price per day for the outfit, and the claim of a blacksmith for services required to carry out the contract, are valid and enforceable in an action upon the bond.

APPEAL from a judgment of the Superior Court of Los Angeles County. M. T. Allen, Judge.

The facts are stated in the opinion.

Foley & Rowell, and Goodrich & McCutchen, for Appellants.

John D. Pope, for Respondent.

CHIPMAN, C.-Plaintiff's complaint sets forth three causes of action upon a bond executed by defendant Powell, as principal, and defendant company, as surety, under the provisions of the act of March 27, 1897, (Stats. 1897, p. 201.) It is alleged that Powell entered into an agreement with the city of Los Angeles on February 8, 1899, to construct a tunnel in Third Street, from Hill to Flower Street, and to furnish at his own cost all the labor and material necessary therefor, and that said work was never completed; that defendants entered into a written undertaking as provided for in the above act. For a first cause of action it is alleged that plaintiff furnished the said Powell the work of certain teams during the months of July, August, and September, 1899, at an agreed price per day for each team and man, amounting in value, in all, to $514.75, and that said work of said teams was completed on the ninth day of September, 1899; that all said work was "furnished for and actually used in the construction of said tunnel under said contract," and that on March 19, 1900, plaintiff filed with said council a verified statement of his said claim, with a statement that the same had not been paid.

A second cause of action sets forth that one Clapham performed labor for said Powell as a blacksmith during the same months as above named, at the agreed price of three dollars per day, amounting in all to $154; that his said work was completed September 6, 1899, and that said labor was performed in the construction of said tunned under said contract; that said Clapham filed a verified statement of his said claim with said council on March 19, 1900, and on the same day assigned to plaintiff his claim as aforesaid and all his rights against the defendant company.

For a third cause of action, and by similar allegations, plaintiff sets forth the claim of one French for one day's labor, in the month of July, 1899, as superintendent of the work on said tunnel, at the agreed price of $2.50; alleges the filing of the claim and its assignment the same as in the case of said Clapham. Appended to the complaint are copies of the itemized claims filed with the council. Defendants answered, controverting the allegations of the complaint, and, as a separate defense, pleaded the act in bar, alleging that notice of the several claims was not filed within the time re

quired by the act. The contract between Powell and the city was executed February 8, 1899, and is fully set forth in the findings; the court found that Powell assigned all his interest in this contract on May 10, 1899, to the firm of Swenson & Hill; that since said date Swenson & Hill have been engaged in carrying out said contract, "and with the knowledge and approval of said municipal corporation; and all payments of money by said contract provided to be made to said Powell have been made direct to Swenson & Hill by said corporation, as said payments have come due under the contract," and since said assignment to Swenson & Hill said Powell has done no work and "has never performed any part of said contract." On May 17, 1899, Swenson & Hill let a contract, which is fully set forth, to one Chaffey to do the excavating, grading, and filling required by the contract, and Chaffey immediately entered upon the work; plaintiff furnished said Chaffey the teams mentioned in the first cause of action, at Chaffey's request, at the price of $514.75, and the same were used in and about the work of excavating said tunnel. Clapham, mentioned in the second cause of action, was employed by Chaffey, and performed blacksmith-work near said tunnel, sharpening tools and implements, to be used, and which were used, in said tunnel, and also he did work on a boring-machine used therein, and his work was of the value of $154. Said French, mentioned in the third cause of action, was employed at the request of Chaffey to oversee the laborers engaged in the work of excavating said tunnel, at the agreed price of $2.50. The claims of Clapham and French were properly assigned to plaintiff. The work contracted to be performed by Powell has never been completed, and the work is still in progress, and the work let to Chaffey by Swenson & Hill has never been completed, and is still in progress. The assignment of the contract by Powell to Swenson & Hill was with the consent and approval of the defendant company, and it agreed to stand as surety for Swenson & Hill in place of Powell, and ever since then. Swenson & Hill have paid all premiums on said bond set forth in the complaint, and said company has accepted the same from them. All claims were filed and verified as alleged in the complaint, and, as filed, were made out against Powell, and not against Swenson & Hill or Chaffey. As conclusion of law, the court found that plaintiff was entitled to

recover judgment against both defendants for the several amounts claimed, and judgment was entered accordingly. Defendants appeal from the judgment on the judgmentroll.

1. Appellants contend that the suit is prematurely brought, for the reason, as appellants construe the terms of the act, that the claims must be filed within thirty days after the completion of the whole work. In other words, that the expression, "shall within thirty days from the time such work is completed," etc., fixes the beginning and the ending of the time within which the claim must be filed.

On the other hand, respondent contends "that this language was meant simply to set a limit of time after which such claims could not be filed, and not to forbid the filing of a claim before the completion of the whole work, provided the claimant's demand is past due." Section 1 requires that -"Every contractor . . . to whom is awarded a contract for the . . . performance of any building, excavating, or other mechanical work for this state, or by any . . . city . . . therein, shall, before entering upon the performance of such work, file with the . . . common council . . . a . . . bond . . . in a sum not less than one-half of the total amount payable by the terms of the contract; such bond shall be executed [prescribes by whom], and must provide that if the contractor . . . fails to pay for any materials or supplies furnished for the performance of the work contracted to be done, or for any work or labor done thereon of any kind, that the sureties will pay the same, . . . provided, that such claims shall be filed as hereafter required." Section 2 provides that "Any material-man, . . . furnishing materials, . . . used in the performance of the work, . . . or any person who performed work or labor upon the same, . . . whose claim has not been paid, . . . shall, within thirty days from the time such work is completed, file with the . . . common council . . . a verified statement that the same has not been paid. At any time within ninety days after the filing of such claim, the person . . . filing the same may commence an action against the sureties on the bond, specified and required by section 1 hereof."

Appellants' argument is that the act must receive the same construction as was given section 1187 of the Code of Civil