DISSENTING OPINION
By CROW, J.I concur in the reasoning of the foregoing opinion to the effect that the bond furnished by defendant Sun Indemnity Company to the contractor assures payment for the labor and material, but it is my opinion that the judgment should be affirmed because the demurrer went back through the second amended petition containing allegations which in connection with certain of those in the first and second (the third defense being out of view7 defenses set forth these facts:
The contractor himself performed his part of the contract for the construction of the ditch improvement; he assigned to plaintiff only “the proceeds and payments under said contract”, “plaintiff under said assignment undertook to collect the proceeds of said contract and to disburse the same”, which means that plaintiff took upon itself those steps; and the amount so assigned and therefore presumably received, and to be thus treated, by plaintiff was $18,335.00.
There is nowhere any allegation that plaintiff had any interest of any nature whatsoever in said proceeds and payments excepting as acquired by it on account of the claims for material and labor which aggregate only $3944.00, or that it is entitled to any other credit against the $18335.
In that situation plaintiff must be deemed to have the difference between the contract price and said aggregate amount,' namely $14,391.
How the case might stand if facts were pleaded to show that plaintiff had any claims against the contractor which were compensated or compensable from the $18,-335. received by it, space need not be taken to discuss.
It must be kept constantly in mind that plaintiff’s cause of action rests wholly on two contracts, one for the construction of the ditch improvement and the other for assurance of payments on account of such construction.