LILLIE, J.
The action herein arises out of a highway construction contract between appellant Claude Fisher Company and the State of California entered into on February 5, 1951. On April 8, 1952, appellant's work was terminated by the state and the balance of the project was completed by another contractor. The Fidelity and Deposit Company, surety on Fisher's construction bond, paid the state the sum of $163,421.79 on the bond and thereafter instituted the present...
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