Armour & Co. v. Western Const. Co.

• Decision Date: 04 January 1905
• Citation: 78 P. 1106,36 Wash. 529
• Court: Washington Supreme Court
• Parties: ARMOUR & CO. v. WESTERN CONSTRUCTION CO. et al.

78 P. 1106

36 Wash. 529

ARMOUR & CO. v. WESTERN CONSTRUCTION CO. et al.

Supreme Court of Washington

January 4, 1905

Appeal from Superior Court, Clarke County; A. L. Miller, Judge.

Action by Armour & Co. against the Western Construction Company and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

A. C. & R. W. Emmons and Coovert & Stapleton, for appellant.

B. S. Grosscup, Cotton, Teal &amp Minor, and W. C. Bristol, for respondents.

DUNBAR, J.

This is an action commenced in the superior court of the state of Washington for Clarke county for the purpose of collecting moneys due plaintiff and appellant for certain provisions furnished respondent Western Construction Company, and in which respondent AEtna Indemnity Company is made defendant on account of becoming surety on a bond furnished by said construction company to the Portland, Vancouver & Yakima Railway Company, and in which respondent Portland, Vancouver & Yakima Railway Company is made defendant on account of failing to take the bond provided for by statute. The action was for the provisions furnished for the carrying on of said work under the contract with the railway company, consisting of ham, lard, and provisions of like character. To appellant's complaint respondent railway company demurred, which demurrer was sustained, and an order was made dismissing said action as to respondent railway company, and judgment was entered in favor of said respondent for its costs and disbursements against this appellant. The respondent AEtna Indemnity Company also demurred to the appellant's complaint, which said demurrer was also sustained, and an order was made dismissing said action as to respondent indemnity company, and judgment was entered in favor of said respondent for costs and disbursements against this appellant.

The demurrer of the railway company was upon the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendant. The demurrer of the AEtna Indemnity Company embraced this ground and others. But with the view that we take of the first ground of demurrer of the railway company, which is the third of the AEtna Indemnity Company, a discussion of the other grounds of demurrer is rendered unnecessary. The statute which is the basis of this action is section 1, c. 24, p. 32, of the Laws of 1893, and is as follows: 'Every person performing labor upon or furnishing material to be used in the construction, alteration, or repair of any mining claim building, wharf, bridge, ditch, dyke, flume, tunnel, fence machinery, railroad, street railway, wagon road, aqueduct to create hydraulic power, or any other structure, or who performs labor in any mine or mining claim or stone quarry has a lien upon the same for the labor performed or materials furnished by each, respectively, whether performed or furnished at the instance of the owner of the property subject to the lien, or his agent; and every contractor subcontractor, architect, builder or person having charge of the construction, alteration or repair of any property subject to the lien as aforesaid, shall be held to be the agent of the owner for the purposes of the establishment of the lien created by this act: provided, that whenever any railroad company shall contract with any person for the construction of its road, or any part thereof, such railroad company shall take from the person with whom such contract is made a good and sufficient bond, conditioned that such person shall pay all laborers, mechanics and material men, and persons who supply such contractors with provisions, all just dues to such persons or to any person to whom any part of such work is given, incurred in carrying on such work, which bond shall be filed by such railroad company in the office of the county auditor in each county in which any part of such work is situated. And if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.' The title of this act is 'An act creating and providing for the enforcement of liens for labor and material.' The contention of the respondent is that the provisions of this act are in contravention of the provision of the Constitution (section 19, art. 2) that no bill shall embrace more than one subject, and that shall be expressed in the title. It will be observed that there is no room for the appellant's claim in this action, unless it is provided for in the proviso to said section 1, and falls within the purview of the following clause, 'and persons who supply such contractors with provisions.' The first part of the section, down to the proviso, has reference to the claims ordinarily provided for in lien laws for enforcing liens for the furnishing of material or labor, so that the question in this case is whether or not the word 'provisions' falls within the reasonable scope or meaning of the word 'material,' used in the title of the act. It seems to us that it does not. We may concede the assertion of the...