Frank Coluccio Const. Co. v. Kitsap County Sewer Dist. No. 6

• Court: Washington Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Frank Coluccio Const. Co. v. Kitsap County Sewer Dist. No. 6, 329 P.2d 189, 52 Wn.2d 776 (Wash. 1958)
• Decision Date: 21 August 1958
• Docket Number: No. 34640
• Parties: FRANK COLUCCIO CONSTRUCTION CO., Plaintiff, v. KITSAP COUNTY SEWER DISTRICT NO. 6, Defendant and Respondent, United Pacific Insurance Company, a corporation, Cross-Defendants, and Carey & Kramer, a Partnership, James Carey and Jane Doe Carey, his wife, and N. W. Kramer and Jane Doe Kramer, his wife, Cross-defendants and Relators, The Superior Court of the State of Washington for Kitsap County, Frank W. Ryan, Judge, Respondent.

Page 776

52 Wn.2d 776

329 P.2d 189

FRANK COLUCCIO CONSTRUCTION CO., Plaintiff, v. KITSAP COUNTY SEWER DISTRICT NO. 6, Defendant and Respondent United Pacific Insurance Company, a corporation Cross-Defendants, and Carey & Kramer, a Partnership, James Carey and Jane Doe Carey, his wife, and N. W. Kramer and Jane Doe Kramer, his wife, Cross-defendants and Relators The Superior Court of the State of Washington for Kitsap County, Frank W. Ryan, Judge, Respondent.

No. 34640.

Supreme Court of Washington, Department 2.

August 21, 1958.

Ferguson and Burdell, Seattle, for plaintiff.

Schultheis & Maddock, Port Orchard, for defendant.

PER CURIAM.

The plaintiff, Frank Coluccio Construction Company, hereinafter referred to as Coluccio, commenced an action in the Kitsap county superior court against the defendant, Kitsap County Sewer District No. 6, hereinafter referred to as the Sewer District, to recover the balance claimed to be due on a contract for the construction of certain sewer lines and appurtenances at Silverdale, Washington.

The Sewer District answered and cross-complained against Coluccio, joining as additional parties defendant the United Pacific Insurance Company, as the surety on Coluccio's performance bond and hereinafter referred to as the surety, together with the members of the partnership of Carey and Kramer, consulting engineers hereinafter referred to as Carey and Kramer.

Defective workmanship by Coluccio was the basis of the Sewer District's cross-complaint, and it was alleged that it had cost the Sewer District $35,000 to repair the sewer lines 'to make them conform to the terms of the Construction Agreement'; that defective workmanship had further caused the Sewer District a loss of $6,093.60 in revenue, and damages were sought in those amounts from Coluccio and its surety.

The liability of Carey and Kramer was predicated on the breach of their contract of employment with the Sewer District, executed July 2, 1953, whereby they had been employed as engineers to design and prepare plans for a sewage disposal plant; to design and prepare plans for a system of sewer lines; to provide general supervision of construction; and 'day [obviously intended to be day-to-day] inspection of the contractor's work as the work progresses.' They were to receive a fee of eight per cent of the total construction cost for the 'design work,' and two per cent 'for the performance of the supervision and inspection.'

The Sewer District alleges that proper inspection and supervision would have disclosed the defective workmanship; that Carey and Kramer breached their contract to inspect and supervise, and that, in consequence of that breach, the Sewer District sustained damage in the amounts of $35,000 and $6,093.60, the items of damage being the same as those claimed against Coluccio and its surety.

The Sewer District further alleges that it is in doubt as to which of the parties--Coluccio and his surety, or Carey and Kramer--'it is entitled to redress against and that the ends of justice require that all' of them 'be held in this action to answer the Counter Claim and Complaint of the Kitsap County Sewer District No. 6.'

Carey and Kramer filed a motion for a change of venue of the action against them to the county of their residence, to-wit: King county. This motion was denied. From the order denying their motion for a change of venue, Carey and Kramer, as relators, sought and obtained review by a writ of...