Dowling v. City of Seattle

• Decision Date: 28 June 1900
• Citation: Dowling v. City of Seattle, 22 Wash. 592, 61 P. 709 (Wash. 1900)
• Parties: DOWLING et al. v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

61 P. 709

22 Wash. 592

DOWLING et al. v. CITY OF SEATTLE et al.

Supreme Court of Washington

June 28, 1900

Appeal from superior court, King county; William Hickman Moore Judge.

Action by John Dowling and others, bondsmen of one James Forest against the city of Seattle and others, for money claimed to be due under the terms of a contract between defendant city and the said James Forest. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

William Martin, for appellants.

J. R. &amp R. M. Kinnear, for respondent Crouley.

ANDERS, J.

On February 17, 1896, one James Forest entered into a contract with the city of Seattle to improve, to the established grade, Harvard avenue North, from the north end of the existing improved section to the north margin of East Highland Drive, upon certain terms set forth in the contract. Afterwards, and on September 3, 1896, a supplementary and amendatory agreement to said contract for said improvement was made between the city and James Forest, in accordance with Ordinance No. 4279 of said city, providing for the payment for said improvement in local improvement bonds and warrants at the same rate specified in the original contract. It was provided in said supplementary agreement that said bonds and warrants were to be issued as said work progressed upon an estimate being made thereof by the city engineer as follows: On or about the 20th day of each month during the progress of said work, bonds and warrants were to be issued for 70 per cent. of the contract price of the estimated amount of said work returned by the city engineer as having been done during the preceding calendar month, and the balance of said contract price (being 30 per cent. thereof) to be retained to secure the payment of laborers who shall have performed work thereon, and material men who may have furnished materials therefor. The said contract further provided that 'the said contractor agrees to pay the wages of all persons and for assistance of every kind employed upon or about said work, and for all materials purchased therefor; and the said city of Seattle may withhold any and all payments under this contract until satisfied that such wages, assistance, and materials have been fully paid for.' On the said 3d day of September, 1896, the said James Forest executed a bond to the city of Seattle, with John Dowling, Rosa A. Dowling, George Haisch and Charles H. Tracy as sureties, in the penal sum of $7,000, conditioned for the faithful performance of said improvement, and for the payment for labor done and materials furnished upon and for said improvement, in accordance with the terms of said contract and supplementary agreement. Immediately after executing the supplementary agreement and the bond above mentioned, Forest began work under his contract, and continued the same, by himself and employés, until October 24, 1896, upon which date he abandoned the work and absconded from the city, leaving his employés and those who had furnished materials for the improvement unpaid. At the time he quit work, Forest had earned, according to the finding of the trial court, the sum of $1,895.70. On October 20, 1896, said Forest demanded of the city a bond in the sum of $500 in part payment for the work then done under said contract, and said bond was accordingly executed and delivered to him on said day. After deducting the amount of the bond and $568.70 (being 30 per cent. of the amount earned by Forest), to secure the payment of the laborers and material men who furnished labor and material on said improvement, from the entire amount earned, there still remained the sum of $827, held by the city. On October 20, 1896, one T. L. Crouley loaned to the contractor, Forest, the sum of $384, on the latter's statement that he needed money to pay for work and materials furnished for said improvement, and took Forest's note therefor for $400, including one month's interest on the amount received by Forest, together with a commission for procuring $200 of the amount loaned from a third party, payable on November 20, 1896. At the same time, and as part of the same transaction, Forest, to secure said loan, gave the said Crouley an order on the comptroller of the city of Seattle for the first local improvement bond, due in November, 1896, on account of his contract for grading Harvard avenue; the said bond to be in the sum of $500. And on the same day, and before the money so borrowed was paid to said Forest, said Crouley and Forest went to the comptroller's office and presented the said order or request; and the said comptroller indorsed thereon the words, 'Bond No. 2,' and filed the same in his office. On October 22, 1896, the said Forest represented to one Fred S. Twitchell that he required money for the purpose of paying for labor and materials, and pursuant to said representation, and in accordance with the request of said Forest, the said Twitchell then loaned to said Forest the sum of $500; and in consideration of said loan the said Forest assigned to said Twitchell $515 of the money then due or to become due to him on October estimates for labor on Harvard avenue, as per contract, and at the same time gave said Twitchell an order for said sum on the comptroller of the city, which order was on said day duly presented by said Twitchell to said comptroller, and by him duly filed in his office. On September 5, 1896, the said Forest gave to the Holloway Harness Company two orders on the city comptroller, aggregating $30, and payable out of the amount due upon his contract with the city, which orders were received by the comptroller, and duly filed in his office. The bond No. 1, for $500, issued and delivered to said Forest, was by him hypothecated to one F. M. Spining as security for the...