Crane Co. v. U.S. Fidelity & Guar. Co.
| Decision Date | 13 June 1913 |
| Citation | 74 Wash. 91,132 P. 872 |
| Court | Washington Supreme Court |
| Parties | CRANE CO. v. UNITED STATES FIDELITY & GUARANTY CO. |
Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.
Action by the Crane Company against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals. Affirmed.
McClure & McClure, of Seattle, and Jos. A. M'Caleb, of San Antonio, Tex., for appellant.
Walter S. Fulton, of Seattle, for respondent.
This action was brought for the purpose of recovering upon an indemnity bond. The plaintiff, Crane Company, and the defendant, United States Fidelity & Guaranty Company, are both foreign corporations but authorized to do business in the state of Washington. The defendant H. Sweeney transacted business under the name of H. Sweeney & Co.
On June 25, 1910, Seattle school district No. 1, King county contracted for the construction of an annex to the public school building in the city of Seattle, which is known as the Broadway High School. The contract for the installation of the plumbing in this annex was awarded to H Sweeney & Co. The United States Fidelity & Guaranty Company, for the purpose of protecting and indemnifying the school district from claims and demands of laborers, mechanics, subcontractors, materialmen, etc., as provided by chapter 207, Laws of 1909, executed and delivered to the district the bond upon which this action is based. The bond was conditioned that the contractor, H. Sweeney & Co., 'shall faithfully perform and fully complete said contract, according to the terms, conditions, and covenants therein contained, and shall pay all laborers, mechanics, subcontractors, or materialmen, and all persons furnishing provisions and supplies for the carrying on of said work, all just debts, dues, and demands incurred in the performance of said work, and when completed shall surrender and deliver the same to said Seattle school district No. 1 free from all liens, claims, or demands whatsoever; then this obligation shall be null and void, otherwise to remain in full force and effect.'
Between the 16th day of August, 1910, and the 21st day of August 1911, the plaintiff, at the special instance and request of H. Sweeney & Co., sold and delivered to him, for installation in the high school annex, plumbing goods and supplies of the reasonable and agreed value of $5,866.81, against which amount a credit of $183.07 was allowed. These supplies were contracted for by H. Sweeney & Co. in good faith and in substantially the amount needed to equip the building. In like good faith goods of the kind and quantity ordered were delivered at the building by the plaintiff. On the heading of the invoice forms on which the goods were billed appears the following: 'Terms cash, with exchange on Seattle.' Also: 'Interest after maturity at the rate of 10 per cent. per annum.' After the completion of the building, of the goods which had been furnished by the plaintiff there remained not used remnants to the value of $364.12, as testified to by one witness, and $824.42, as testified to by another. These goods had remained for some months exposed to the elements and were not in the same new condition as when delivered. H. Sweeney & Co. claimed the right to redeliver these remnants to the plaintiff and receive credit therefor. This the plaintiff denied, and refused to accept or receive them. On August 16, 1910, and prior thereto, H. Sweeney & Co. had a current, open, and running account with the plaintiff for goods sold and delivered. On this account were charged goods furnished for other jobs than the one here in question. In fact, all goods sold by the plaintiff to H. Sweeney & Co. both before and after August 16, 1910, and up to and including the date of the furnishing of the last materials for the high school annex, were charged upon this account. From time to time payments were made upon the...
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