Crowley v. U.S. Fidelity & Guar. Co.

• Decision Date: 26 July 1902
• Citation: 29 Wash. 268,69 P. 784
• Court: Washington Supreme Court
• Parties: CROWLEY v. UNITED STATES FIDELITY & GUARANTY CO.

69 P. 784

29 Wash. 268

CROWLEY v. UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Washington

July 26, 1902

Appeal from superior court, King county; W. R. Bell, Judge.

Action by W. M. Crowley against the United States Fidelity &amp Guaranty Company. From a judgment for plaintiff, defendant appeals. Reversed.

James B. Murphy, for appellant.

Kerr &amp McCord, for respondent.

MOUNT J.

On December 6, 1900, respondent entered into a contract with L T. Parker, under which Parker agreed to furnish all labor and material and construct for respondent three cottages for the sum of $2,145; 'first payment, $400, when cottages are roofed in; second payment, $800, when first and second coats of plaster are on; third payment, $945, one day after completion and acceptance of buildings; all payments to be made on receipted bills as payments become due.' The contract provided that respondent might 'during the progress of said buildings require alterations, deviations additions to, or omissions from the said contract, specifications, or plans, * * * and the same shall in no way affect or avoid the contract; but additional costs (if any) of such changes will be added to the amount of such contract price, and deductions shall be made from said contract price for all omissions of work specified, at a fair and reasonable valuation.' And it further provided: 'No bill or account for extra work will be allowed or paid unless authority for contracting same can be shown by a certificate from the owner, countersigned by the architect or superintendent.' To secure compliance with this contract by Parker, appellant executed the bond upon which this suit is based, conditioned that Parker should faithfully perform the work, and faithfully comply with the terms and conditions of the contract. When the cottages were completed, the respondent having made all payments in conformity with the contract, it was ascertained, upon a settlement between respondent and Parker, that there were unpaid bills for material used in the construction of the buildings amounting to about $400. Before making the last payment, respondent notified appellant, in writing, that these outstanding claims were unpaid, and that he would pay out the balance in his hands upon receipted bills, and requested the appellant to see that the contractor paid them. The contractor defaulted, and permitted liens to be filed upon respondent's property. Respondent again notified appellant to pay the claims, and tendered the balance in his hands, viz., $1.75. Appellant refused, and the lien claimants brought an action in the lower court to foreclose their liens. Thereupon respondent served upon appellant a copy of the complaint in the lien case, together with a notice demanding that appellant appear and defend the same, and that, if it failed to appear and defend the lien case, respondent would employ counsel at appellant's expense and interpose a defense thereto. The appellant refused to appear. The contractor, Parker, a party to said suit, defaulted. Respondent employed counsel, filed his answer, put the claimants upon their proof, and pleaded affirmatively his contract and the bond executed by appellant, alleged a full compliance with the terms of the contract and bond, prayed for the dismissal of the said action, and, in the alternative, if the court established said claims as liens upon his property, that upon payment thereof he have judgment over against Parker. He served the answer upon Parker, and made a tender of the balance due from him under the contract. The court in the lien case, upon a trial, rendered judgment against Parker for $500.67, and decreed a foreclosure of the liens, and further decreed that the respondent had fully and faithfully complied with the terms of his contract with Parker. Respondent thereupon paid the judgment in the lien case, and demanded reimbursement from appellant, which demand was refused. Respondent brought this action against the sureties upon the bond to recover the amount of the judgment, viz., $500.67, together with $50 for attorney's fees and $2 appearance costs incurred in defending the lien case. Appellant, after denying the execution of the contract between Parker and respondent set up in the complaint, alleged that respondent made a contract, under which the buildings were constructed, with L. T. Parker and one Merritt, copartners; that for the sake of convenience the contract was made in the name of Parker, and that it was agreed and understood between Parker, Merritt, and respondent that respondent should look to them jointly for the performance of the contract; that the contract provided that, should any dispute arise respecting its meaning, the same should be decided by one Robertson, an architect, whose decision should be final, and, should any dispute arise regarding the value of the extra work, such dispute should be determined by arbitration; that respondent has required extra work which at a fair and reasonable valuation was greatly in excess of the sum of $552.67; that a dispute arose between the contractor and respondent regarding this extra work; that respondent refused to arbitrate as provided in said contract; that respondent is indebted to the contractors for extra work in excess of the sum of $552.67, and in excess of the penalty of the bond sued on, and has refused to pay the same; and that respondent refused to make the payments in the manner and at the time provided in the contract. These allegations were denied in the reply. Upon the trial, judgment was rendered in favor of respondent for the full amount prayed. At the trial the appellant attempted to prove by oral evidence that during the progress of the work deviations and additions to the plans were requested by the owner, and extra work and materials were furnished and put into the buildings; that respondent refused to pay therefor; and that the amount thereof exceeded respondent's demand. This testimony was rejected by the court upon the ground that the contract provided that no bill or account for extra work should be allowed or paid unless written authority therefor was produced. This ruling of the court is assigned as error.

It appears that the original plans and specifications and the contract were prepared by one Robertson, an architect, on forms usual in such cases, which contemplated a superintendent for the work. No superintendent was employed but the owner himself was about the work daily, and whatever superintendence was necessary he did himself. The contract provides especially that 'should the owner, during the progress of the work, desire any deviation, alteration, additions to or omissions from said contract, specifications, or plans, he shall be at liberty to have such changes made, and contract, but the additional cost shall be added to the contract price, and that no bill or tot he contract price, and that no bill or account for extra work shall be allowed or paid unless...