Fireman's Fund Indemnity Company has appealed from a judgment in favor of Sacramento County in an action brought by the insurance company in which it sought to have a surety bond in favor of the county cancelled on the ground that there was no contract between the obligor and the county.
In 1955 in connection with a proposed subdivision the J. & D.P. Developers, Inc., filed a final subdivision map with the Board of Supervisors of Sacramento County. Accompanying that map and as a part thereof, over the signatures of the officers of the subdivider, was the following language:
"The undersigned hereby consents to the preparation and recording of this map of Washington Heights, Unit No. 1 and offers for dedication and does hereby dedicate to any and all public uses the way, streets, and avenue shown herein...."
This map was accepted by the board of supervisors on August 1, 1955. At the same time a surety bond issued by the insurance company was filed with the county. At the time of acceptance the streets were not improved and the purpose of the bond was to permit the subdivider to get the subdivision map accepted before the street work was completed. No formal agreement as to the street work was ever entered into between the subdivider and the county. Section 11611 of the Business and Professions Code states that the governing body shall as a condition precedent to the acceptance of any streets require that the subdivider either improve or agree to improve the streets. Section 11612 provides that if an agreement to improve the streets is entered into the governing body may require the agreement be secured by a bond, or it may accept in lieu thereof a cash deposit. Section 5 of Ordinance Number 390 of the county of Sacramento requires that the subdivider shall agree to improve all land dedicated for streets as a condition precedent to the acceptance of the final map. It was stipulated that no work was ever done in the subdivision and it remains unimproved.
After the bond was delivered appellant insurance company sought to have it returned on the ground that the bond was issued to secure performance under a contract and since there was no contract there could be no liability under the bond.
Appellant's contention cannot be sustained. The evidence sustains the trial court's finding that there was a contract between the county and the developer and that the surety bond secured the performance of the contract. The county ordinance pertaining to subdivisions, which was introduced in evidence, provided that in addition to the requirements prescribed by the Subdivision Map Act of the State of California and by ordinances enacted pursuant thereto the subdivider should make proper and adequate provisions for streets, drainage ways and utility easements or alleys, and should either improve or agree to improve all land dedicated for such purposes as a condition precedent to the acceptance and approval of the final map. The ordinance also provided that the required improvements be in accordance with the "Rules for Improvement of Roads and Streets to be Dedicated" as established by the board of supervisors by resolution. The ordinance further provided that if the improvement work was not completed prior to the acceptance of the final map and the owner desired that the streets be accepted it could enter into an agreement as contractor with the board of supervisors whereby in consideration of the acceptance of the offers of dedication the contractor would agree to complete the work specified in the agreement. In such a case the contract had to be secured by a surety bond in a sum to be fixed by the county engineer, not in excess of the estimated cost of the improvement. While the "Rules for Improvement of Roads and Streets to be Dedicated" were not introduced in evidence, no one has questioned their sufficiency in point of certainty when considered with the subdivision map to inform the subdivider, the county and the surety company as to the work to be done. The surety bond itself recited that the subdivider intended to dedicate the streets in the subdivision as shown on the plat thereof; that the subdivider was required to furnish a bond to insure that it would improve the streets; and that if the subdivider failed the surety would pay for such improvements. The condition of the obligation was that if the subdivider failed "to grade and surface said public streets
No other points require discussion. Since there was a contract between the subdivider and the county, appellant is bound on its surety bond.
The judgment is affirmed.
Van Dyke, P.J., and Peek, J., concurred.
A petition for a rehearing was denied April 25, 1960, and appellant's petition for a hearing by the Supreme Court was denied May 25, 1960. Dooling, J. pro tem.,