Crane Co. v. Musgrave & Blake

• Decision Date: 30 April 1918
• Docket Number: 14611.
• Citation: 102 Wash. 59,172 P. 866
• Court: Washington Supreme Court
• Parties: CRANE CO. v. MUSGRAVE & BLAKE et al.

172 P. 866

102 Wash. 59

CRANE CO. v. MUSGRAVE & BLAKE et al.

No. 14611.

Supreme Court of Washington

April 30, 1918

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by the Crane Company against J. G. Musgrave and E. A. Blake copartners, and the Maryland Casualty Company, in which Musgrave & Blake filed a cross-complaint against the Casualty Company. From a judgment for plaintiff and a judgment for cross-complainants, the Casualty Company appeals. Affirmed.

Grinstead & Laube, of Seattle, for appellant.

Walter S. Fulton and Farrell, Kane & Stratton, all of Seattle, for respondent.

PARKER J.

This is an action upon a bond executed by the defendant Maryland Casualty Company as surety and Beers Building Company as contractor and principal as provided by sections 1159-1161 Rem. Code, relating to bonds of contractors to secure laborers, mechanics, subcontractors, and materialmen furnishing labor and material for the carrying on of public work. Trial in the superior court for King county, sitting without a jury resulted in findings and judgment in favor of the plaintiff Crane Company and against the defendant casualty company in the sum of $2,190.99, and a judgment in favor of the defendants Musgrave and Blake, upon their cross-complaint against the defendant casualty company in the sum of $130.62. From this disposition of the cause the casualty company has appealed to this court.

On October 7, 1915, the state of Washington by its Board of Control entered into a contract with Beers Building Company by which that company agreed to furnish the labor and material for and to construct the plumbing and heating system of the administration building of the State Institute for the Blind, at Vancouver, according to plans and specifications prepared therefor and by reference made a part of the contract. The specifications so made part of the contract contained, among other provisions, the following:

'The contractor shall not assign this contract nor sublet any portion thereof without the written consent of the Board of Control and the bonding company.'

Beers Building Company was to receive as compensation for the work the sum of $7,260, payable in monthly installments as the work progressed on the basis of 85 per cent. of the value thereof; the balance to be paid in 30 days following the completion of the work. On October 13, 1915, the bond here sued upon was executed by Beers Building Company, as principal, and the defendant Maryland Casualty Company as surety, in the sum of $7,260. It contained recitals and conditions as the law required as follows:

'This bond is executed in pursuance of sections 1159 and 1161 of Remington and Ballinger's Annotated Codes and Statutes of the State of Washington, as amended by chapter 28 of the Session Laws of 1915, and is subject to all of the provisions thereof, and is entered into with the state of Washington, for the use and benefit of all laborers, mechanics, subcontractors and materialmen and all persons who shall supply such person or persons or subcontractors with provisions and supplies for the carrying on of the work covered by the contract entered into on the 7th day of October, 1915, between the above bounden principal, Beers Building Company, and the said state of Washington, for the plumbing and heating system of the Administration Building for the State Institution for the Blind at Vancouver, Washington, according to the terms and conditions of said contract.

'And the conditions of this obligation are such that if the said principals shall faithfully perform all the provisions of said contract not in conflict with said chapter 28 of the Laws of 1915, and pay all laborers, mechanics, and subcontractors and materialmen, and all persons who shall supply such person or persons, or subcontractors with provisions and supplies for the carrying on of such work * * * then this obligation shall be null and void; otherwise to remain in full force and effect.'

On November 19, 1915, Beers Building Company entered into a contract with the defendants Musgrave and Blake by which they were to furnish the labor and material for and to construct the plumbing and heating system as contracted for by Beers Building Company with the state. Musgrave and Blake were to receive from Beers Building Company as compensation therefor the sum of $7,000, payable in monthly installments as the work progressed, on the basis of 80 per cent. of the value thereof, the balance to be paid in 30 days following the completion of the work, but all such payments to be made after monthly payments made by the state to Beers Building Company on its contract. By the terms of the original contract and subcontract the work was to be completed by September 15, 1916. The work was to be done under the supervision of the state's architect, who was also to make the estimates for the monthly payments as the work progressed. Musgrave and Blake proceeded with the work under their contract, and between February 1 and June 28 1916, Crane Company furnished to them plumbing goods and supplies for the work of the reasonable value of $3,207.93, of which there remains unpaid and due to the Crane Company the sum of $2,190.99. All of this material was furnished by Crane Company for and actually went into the construction of the plumbing and heating system of the building and was suitable therefor. Musgrave and Blake did not complete the work, but their failure to do so was because of the failure of Beers Building Company to pay them according to the terms of their contract; Beers Building Company having received, at least, $1,750 on May and prior installments upon its contract with the state, no part of which was paid by it to Musgrave and Blake. For this reason Musgrave and Blake quit the work the last of June, 1916, leaving it uncompleted. Beers Building Company having neglected to proceed with the work, the Board of Control declared its contract forfeited and at an end, and after tendering the completion of the work to the casualty company, as surety, and it also neglecting to proceed with the work, the Board of Control caused the work to be completed. The work and material furnished by Musgrave and Blake, including that furnished to them by the Crane Company, less the payments made to them by Beers Building Company, amounted to $130.62 in excess of the amount due Grane Company, measured by the terms of Musgrave and Blake's contract with Beers Building Company and was reasonably worth that amount. No formal written consent was ever given by the Board of Control or the casualty company to the making of the subcontract between Beers Building Company and Musgrave and Blake. That contract was never recognized by the Board of Control or its architect as in any sense a...