City Retail Lumber Co. v. Title Guaranty & Sur. Co.

• Decision Date: 28 February 1913
• Citation: 72 Wash. 300,130 P. 345
• Court: Washington Supreme Court
• Parties: CITY RETAIL LUMBER CO. v. TITLE GUARANTY & SURETY CO.

130 P. 345

72 Wash. 300

CITY RETAIL LUMBER CO. v. TITLE GUARANTY & SURETY CO.

Supreme Court of Washington

February 28, 1913

Department 1. Appeal from Superior Court, Chehalis County; Mason Irwin Judge.

Action by the City Retail Lumber Company against the Title Guaranty & Surety Company. From a judgment for plaintiff, defendant appeals. Reversed and corrected.

Frank Beam, of Aberdeen, and Murphy a Wall, of Seattle, for appellant.

Hogan &amp Graham, of Aberdeen, for respondent.

PARKER J.

The plaintiff seeks recovery from the defendant upon a bond executed by it as surety for William Dutcher to the city of Aberdeen, under section 1159, Rem. & Bal. Code, to secure performance on his part of a street improvement contract which he had theretofore entered into with the city, which bond was also conditioned as follows: 'Now therefore, if the above-bounden principal, William Dutcher, * * * shall pay * * * all persons who shall supply such contractor * * * with provisions and supplies for the carrying on of the work contemplated in said contract, * * * then this obligation to be void, otherwise to be and remain in full force and effect.' The cause proceeded to trial before the court without a jury, resulting in findings and judgment in favor of the plaintiff, from which the defendant has appealed.

A careful reading of the entire record, which includes all of the evidence introduced upon the trial, convinces us that there is practically no room for controversy as to the controlling facts here involved, which may be summarized as follows: In July, 1910, the city of Aberdeen entered into a contract with Dutcher for the improvement of portions of Spur, Tenth, and Broadway streets by grading and constructing wooden sidewalks, curbs, and gutters thereon. Immediately upon the entering into of this contract, appellant, as surety for Dutcher, executed to the city the usual statutory bond conditioned in the language above quoted, as required by section 1159, Rem. & Bal. Code. Thereafter respondent sold and delivered to Dutch lumber amounting in value to $681.33. This lumber was so furnished with the understanding upon the part of both respondent and Dutcher that it was to be used in connection with the construction of the improvement, as follows: $390.79 worth of the lumber was furnished for and used in the construction of the sidewalks, curbs, and gutters of the improvement, and actually went into and became a part thereof; $290.54 worth of the lumber consisted of railway ties, which were furnished for and used in the construction of a temporary narrow gauge railway, over which dump cars were run for the removal of surplus dirt from the portions of the street being improved. The trial court found, among other things: 'That while said 'ties' did not actually go into the streets themselves so as to actually form a part of the improvement, yet the use of said 'ties' for the construction of the dump-car line above mentioned practically consumed the lumber comprising the 'ties,' so that after the use of the lumber for 'ties,' as above mentioned, the lumber would have little or no value.'

We cannot agree with this finding, if it have reference to the consumption of the ties in the construction of the particular improvement for which appellant executed the bond here sued upon, and we think that the question of the consumption of the ties in this improvement and the furnishing of them with a view that they were to be consumed therein becomes of vital importance here in determining appellant's liability upon its bond to pay for the ties. Mr. Davenport, respondent's manager and its only witness upon the trial, testified as follows: 'Q. On July 30, 1910, there were 1,121 pieces 4X8 ties sold. Do you know what they were supposed to be used for? A. They were gotten to build a railroad to Tenth, Broadway, and Spur. Q. Do you know whether or not those ties were used up in doing that work or were used for other purposes after that? A. I could not say. I presume they were used afterwards; I don't know. * * * Q. Do you know whether or not there was an improvement at the other end of the line, the lower end? A. I think there was. Q. What was that improvement? A. I think that was First street. Q. So they made the track to extend from Spur and Broadway down to First? A. Yes. Q. That was a public improvement on First street? A. Yes. Q. Mr. Dutcher was doing both contracts? A. Yes.' This is the substance of all the information he gives us as to the purpose for which the ties were furnished and as to the use they were actually put to.

Dutcher, the contractor to whom the ties were furnished, testified as follows: 'Q.

Where were these ties used? A. On Spur, Broadway, and Tenth to run away the surplus dirt. Q. Were they used any place else? A. A few, I guess, were used on Eleventh. Q. How many contracts did you have at this time with the city of Aberdeen? A. I had four. Q. Did you use these same ties on all four contracts? A. I think I did. I used them with some old ones I had before I got these. Q. Did you put the old ones down first or later? A. Later; I used the new ones first and the old ones afterwards. Q. And these ties were used on the First street improvement as well? A. Some of them were. Q. All of them? A. No, we used most of the old ones on First street. Q. At the time you were taking down Spur you were filling in First with the dirt? A. Yes. Q. So that the cars were worked over First as well as Spur street? A. I suppose you might call it that way. Q. Did you make use of these ties on Eleventh street? A. I don't think we did. Q. You did not haul any cars from Eleventh street over this railroad? A. Yes, but we did not use those; we had some old planks. Q. The dirt hauled from Eleventh street all went over this track, over these ties? Q. Yes. Q. And you had the E street contract at this time? A. Yes. Q. State whether the dirt that went into E street went over this track. A. It did. Q. Which was the largest contract of these four? A. First street. Q. First street had more yards of dirt? A. Yes. Q. Which was the smallest yardage as far as it went over this track? A. E street was the smallest. Q. And was Spur next? A. I cannot remember whether Spur was larger than Eleventh, or whether Eleventh was the largest. Q. But this track was used for all four jobs? A. Yes, to run the dirt...