
    No. 9,274.
    In Bank
    May 14, 1884.
    NEWTON MORGAN, Appellant, v. STEWART MENZIES et al., Respondents.
    Practice and Pleading—Liability of Sureties to Undertaking—Demand.— Where a demand is necessary to fix the liability of sureties to an undertaking, it is part of the contract, and must be made before the commencement of an action for the breach of the undertaking, and averred in the complaint. It cannot be made after the commencement of _the action except as the basis of a new action.
    Appeal from, a judgment of the Superior Court of the city and county of San Francisco.
    The facts appear in the opinion of the court. See also report of same case on .former appeal, 60 Cal. 341.
    
      Wm. H. Sharp, for Appellant.
    
      W. C. Burnett, and E. E. Haft, for Respondent.
   McKee, J.

On a former appeal in this case we held that no recovery could be had in the action out of which the case arises, because there was no averment and no proof that the claim of the plaintiff had been presented to the board of supervisors of the city and county of San Francisco, as required by the statute of 1863—64, pp. 152, 153, and payment demanded; and because the undertaking itself upon which the action was founded was in contravention of law, and void; therefore the judgment appealed from was reversed and the cause remanded. (60 Cal. 341.)

When the remittitur went down and was filed in the lower court, the plaintiff amended his complaint, and, subsequently, filed a supplemental complaint containing the averments, that he had presented his claim to the board of supervisors of the city and county and demanded payment thereof on the 10th of July, 1882, two years and six months after the commencement of the action. Upon these pleadings the action was again tried and judgment was given for the defendants, from which the plaintiff appeals.

Where a demand is necessary to fix the liability of sureties to an undertaking, it is parcel, of the contract; and it must be made before the commencement of an action for the breach of the undertaking; and in the action itself it must be averred and proved. It cannot be made after the commencement of the action, except as the basis of a new action.

With the exception of the averment of a demand in the supplemental complaint, the pleadings upon which the case was tried are, substantially, what they were on the former appeal, and the questions at issue are the same; the decision then rendered must therefore be accepted as the law of the case.

Judgment affirmed.

McKinstry, J., Ross, J., Myrick, J., Sharpstein, J., and Thornton, J., concurred.  