Eilers Music House v. Hopkins

• Citation: 73 Wash. 281,131 P. 838
• Court: Washington Supreme Court
• Decision Date: 28 April 1913
• Parties: EILERS MUSIC HOUSE v. HOPKINS et al.

131 P. 838

73 Wash. 281

EILERS MUSIC HOUSE v. HOPKINS et al.

Supreme Court of Washington

April 28, 1913

Department 1. Appeal from Superior Court, Spokane County; Thos. E Grady, Judge.

Action by the Eilers Music House against B. F. Hopkins and others. From a judgment for plaintiff, defendant Pacific Surety Company appeals. Affirmed.

Cannon Ferris & Swan, of Spokane, for appellant.

Belden & Losey, of Apokane, for respondent.

MOUNT J.

On June 27, 1910, the plaintiff and the defendants Hopkins & Feight entered into a contract by the terms of which the said defendants agreed to make certain excavations and remove an old building for the purpose of erecting a new building upon a certain lot in Spokane, according to the plans and specifications agreed to, for the price of $5,675. The work was to be completed on the 18th day of August 1910. To secure the faithful performance of this contract the contractors executed a bond, with the Pacific Surety Company as surety, in the sum of $10,000. The contractors defaulted in their work. Subsequently the Surety Company was notified thereof and instructed the plaintiff to complete the work at the expense of the Surety Company. The surety bond provided 'that the surety shall be immediately notified of any breach of said contract by said principal.' It also provided that any suits brought against the surety to recover on said bond must be instituted within six months after the first breach, 'and in no event shall any action be brought against the surety hereunder after the expiration of six months after the completion of the work under said contract.' This action was brought to recover on the bond by reason of the breach of the contract. There was no appearance in the case on the part of Hopkins & Feight, contractors. The case proceeded to trial against the defendant Pacific Surety Company alone. The case was tried to the court without a jury. Findings of fact were made in favor of the plaintiff, and judgment was rendered against the defendant Pacific Surety Company in the sum of $1,440.25, with interest from August 11, 1911, the date when the complaint was filed. The defendant Pacific Surety Company has appealed from that judgment.

It is apparently conceded that the agent of the Surety Company was notified on September 22, 1910, that the contractors had not completed the work. And on October 5, 1910, a formal notice was served upon the local agent of the Surety Company advising the company that the contractors had defaulted, and requiring the Surety Company to finish the work according to the contract. The Surety Company replied to this notice as follows: 'We instruct you to complete at our expense. Pacific Surety Company, by H. W. Newton, Attorney in Fact.' Newton was the general agent and attorney in fact representing the Surety Company in this state, and executed the bond in controversy as such agent. The suit was not brought upon the bond until August, 1911.

The court found: 'That the defendant Pacific Surety Company waived the terms and conditions of said bond with reference to the retention of the 15 per cent. of the contract price provided for in said bond, and also with reference to the giving notice in case of default, and, further, by its duly authorized, legal, and constituted agent, waived all the other terms and conditions of said bond relative to notice, retention of money, and time within which suit might be brought under said bond; that said waiver was communicated to the plaintiff, and the plaintiff acted thereon; that the defendant Pacific Surety Company acted thereon; that the agent of the defendant Pacific Surety Company, H. W. Newton, was at all times authorized to waive the different provisions of said contract, and did waive the same, and the said waiver by the said H. W. Newton, as agent for said ...