40, Seattle Nat. Bank v. School Dist. No. 40

• Citation: 55 P. 317,20 Wash. 368
• Parties: SEATTLE NAT. BANK v. SCHOOL DIST. NO. 40.
• Decision Date: 16 December 1898
• Court: United States State Supreme Court of Washington

55 P. 317

20 Wash. 368

SEATTLE NAT. BANK v. SCHOOL DIST. NO. 40.

Supreme Court of Washington

December 16, 1898

Appeal from superior court, Kittitas county; John B. Davidson Judge.

Bill by the Seattle National Bank against school district No. 40. There was a decree for defendant, and plaintiff appeals. Affirmed.

Preston, Carr & Gilman and Mires & Warner, for appellant.

Kauffman & Frost and Kirk Whited, for respondent.

ANDERS J.

The amended complaint in this action, omitting the venue, title and verification, reads as follows: 'Comes now the plaintiff above named, and, for cause of action against the defendant above named, alleges: (1) That it is, and at all times herein mentioned was, a corporation duly organized and existing under and by virtue of the laws of the United States, and engaged in a general banking business in the city of Seattle, state of Washington. (2) That the defendant is and at all times herein mentioned was, a corporation duly organized and existing under and by virtue of the laws of the state of Washington. (3) That on or about the 5th day of September, 1893, at an election regularly held for that purpose, the electors of the said school district No. 40, the defendant herein, authorized the directors of the said school district to contract for the erection of a brick school house at Wenatchee, Kittitas county, Washington, and to issue bonds of said school district in the sum of $10,000 in payment thereof. (4) That thereafter, to wit, on or about the 13th day of November, 1893, the directors of said school district pursuant to authority in them vested, did enter into a contract in writing with one William Peacock to erect said school house for the sum of $7,344; that in said contract it was provided that $2,000 of the contract price should be paid to the contractor upon the completion of the foundation of said building, and the delivery of the materials for the construction of the remainder of the said building on the ground, except mill work. (5) That thereafter, to wit, on or about the 24th day of November, 1893, the directors of said school district directed and authorized the said contractor to add to said building, as an extra, a basement story, and agreed to pay therefor the sum of $656. (6) That on or about the 24th day of November, 1893, the said contractor commenced the construction of said building, and on the 25th day of January, 1894, had, as plaintiff is informed, substantially completed the foundation and basement story of the said school house, and delivered on the grounds the material for said building, in accordance with the terms and conditions of said contract, and thereupon demanded the payment of the first installment of the contract price, to wit, the sum of $2,000 and the sum agreed upon for the construction of the basement story, to wit, $656. (7) That, at the time said contractor demanded the payments of the amounts referred to in the last preceding paragraph, he stated to the directors of the said school district, in regular meeting assembled, that he would be unable to proceed with his contract unless said payments were made, and that, if said directors could issue warrants for the amount due, the said contractor would dispose of them to the plaintiff herein, and thereby secure sufficient money to complete the contract in accordance with the terms and conditions thereof. (8) That thereupon the said directors, at a regular meeting held for that purpose on or about January 25, 1894, with knowledge of the intention of the contractor to sell the said warrants to the plaintiff, and in order that the contractor might sell the same to the plaintiff, issued and delivered to said contractor five warrants, in the sum of $500 each, payable out of special fund No. 1, and drawn upon the treasurer of Kittitas county, Washington. (9) That thereafter said contractor, for the sum of $2,425 paid him therefor by the plaintiff, and with the knowledge and consent of the directors, sold, assigned, transferred, and set over to this plaintiff the said warrants, and all his rights thereunder. (10) That thereafter, to wit, on or about the 1st day of October, 1894, the said contractor having theretofore, but after the purchase of said warrants by the plaintiff, abandoned his contract, the defendant, by its directors, took possession of so much of the foundation and basement story as had been constructed by the said contractor, and of said materials, and used the same in the completion of the erection of the building. (11) That no payment has ever been made to this plaintiff on account of said warrants, nor for any part of the value of the labor and materials which entered into the said building appropriated as aforesaid by the said defendant to its use, and that the value of the labor and...