Friend v. Ralston

• Decision Date: 19 July 1904
• Citation: 35 Wash. 422,77 P. 794
• Parties: FRIEND v. RALSTON et al.
• Court: Washington Supreme Court

77 P. 794

35 Wash. 422

FRIEND v. RALSTON et al.

Supreme Court of Washington

July 19, 1904

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Carrie B. Friend against F. H. Ralston and another and the United States Fidelity & Guaranty Company. From a judgment for plaintiff, the guaranty company appeals. Affirmed.

James B. Murphy, for appellant.

Ralph Simon, for respondents.

PER CURIAM.

This action was begun in the superior court of King county by Carrie B. Friend, plaintiff, against F. H. Ralston and D. A Royea, copartners doing business under the firm name and style of Ralston & Royea, and the United States Fidelity &amp Guaranty Company, defendants. On the trial of the issues between the plaintiff and the defendant United States Fidelity & Guaranty Company before the court below and a jury, a verdict was rendered in favor of plaintiff for $1,206.41, under direction of the trial court, April 10 1902. Judgment was entered on this verdict April 29, 1902 from which the United States Fidelity & Guaranty Company appeals.

On the 21st day of January, 1901, at the city of Seattle, respondent Carrie B. Friend entered into a written contract with the respondents Ralston & Royea for the construction in said city, on the real estate of Mrs. Friend, of a certain two-story frame building, for the consideration of $7,753. On the 25th day of January, 1902, Ralston & Royea, as principals, with appellant company as surety, executed a bond to Carrie B. Friend in the penal sum of $3,000. Such bond, by recitals, referred to this building contract, and contained the following condition:

'Now, therefore, the condition of the foregoing obligation is such that if the said principals shall well, truly and faithfully comply with all the terms, covenants and conditions of said contract on their part to be kept and performed according to its tenor, then this obligation to be null and void, otherwise to be and remain in full force and virtue in law.'

The above contract, among other things, provided that the contractors, at their own expense, should provide and supply all manner of materials and labor for the construction of this building, and complete the same on or before May 1, 1901. The provisions of the third and fifth paragraphs of the contract are as follows:

Third. Should the owner at any time during the progress of said building require any alterations, deviations, additions to or omissions from the said contract, specifications or plans, she shall be at liberty to have such changes made, and the same shall in no way affect or avoid the contract, but the 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.'

'Fifth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications the same shall be decided by McManus & Walker, architects and their decision shall be final and conclusive, and should any dispute arise respecting the true value of any extra work, or omitted work, the same shall be valued by two competent persons, one employed by the owner and the other by the contractors, who, in case they cannot agree as to the value of such extra work or omitted work, shall name an umpire, whose decision shall be binding on all parties.'

These contractors, Ralston & Royea, purchased from the Kerry Mill Company lumber and material which were used in the construction of this building. The balance remaining due therefor was $1,179.49. On June 15, 1901, the architects, McManus & Walker, issued their final certificate with regard to the completion of the building under the contract. The Kerry Mill Company on August 21, 1901, filed a lien upon said property, and brought action in the court below to foreclose same, making Carrie B. Friend and Ralston & Royea defendants therein. Ralston & Royea also filed a lien on said premises for $152, balance due on contract, and also for $1,410.25 on account of extra work and materials, and brought suit to foreclose such lien. Mrs. Friend answered the complaint of the contractors, denying the material allegations thereof, except an item of $8. She further alleged in her answer a demand for $599.90 for work and materials omitted; also a claim for demurrage in delaying the completion of the building till June 16, 1901, and the filing of the lien of the Kerry Mill Company, and the action instituted for the foreclosure thereof. The reply of the contractors admitted that the building was not completed till June 16, 1901, and denied allegations regarding the omission of any workor materials. The contracts' bond provides 'that any suits at law or proceedings in equity brought against this bond * * * must be instituted within six months after the first breach of said contract'; that a registered letter mailed to the president of appellant company, at its principal office, in Baltimore City, Md., shall be deemed sufficient notice. On September 18, 1901, Mrs. Friend, by her attorney, notified appellant, by registered letter, of the bringing of the Kerry Mill Company's lien suit, and tendered the defense thereof to appellant. It appears from the recitals in such notice that Mrs. Friend was served with the summons and complaint in such action on September 17, 1901. The appellant disregarded such notice, and failed to take any part in such defense. Those two lien cases were consolidated and tried together. The lower court found in favor of the Kerry Mill Company, in the sum of $1,280.04, and also decreed that its lien therefor, together with an attorney's fee and costs, be foreclosed against said premises. The court further found that Mrs. Friend was indebted to the contractors in the sums of $28 for extra work, and $152 for balance due on the contract price, and on February 13, 1902, rendered judgment in her favor against Ralston & Royea for $1,100.04 and costs. This action was instituted by Carrie B. Friend to recover damages on the bond for the failure on the part of Ralston & Royea to perform their part of said contract, and by reason of the foregoing facts and judicial proceedings. On the 3d day of March, 1902, respondent Carrie B. Friend, by order of the trial court, based on the stipulation of the parties, filed her amended and supplemental complaint in the action, wherein, among other things, she alleged notice to appellant to defend as above stated, the rendition of said judgment against the contractors, Ralston & Royea, and appellant company's knowledge of the matters litigated; limiting her demand for judgment to the amount of the judgment recovered by her against Ralston & Royea. Appellant answered the complaint, in which answer it denied certain allegations thereof, admitted the execution of the contract and bond, and set forth several affirmative defenses. The first affirmative defense, in substance, alleges that certain changes, deviations, and alterations were made by the mutual consent of the contractors and Mrs. Friend, as outlined in the plans and specifications; that the reasonable value of such extra work and material was greater than the amount sought to be recovered in this action and the penalty of the contractors' bond; that no allowance was made to the contractors for such material and labor; and that Mrs. Friend was still indebted to them for the same. The second affirmative defense alleges matters with regard to extra work and material furnished pursuant to oral agreements made between the contractors and owner, contrary to the plans and specifications, which were a part of the building contract. The provision claimed to have been violated is as follows: 'No bills or accounts 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.' It is further charged in this defense that such charges were made without the knowledge or consent of appellant. The third separate defense, after alleging that there were extra work and material furnished in the construction of this building, charges that the contractors and owner were unable to agree upon the allowance therefor; that the contractors, pursuant to the provisions of the above paragraph 5 of the building contract offered to submit the value of such extras to arbitration; and that Carrie B. Friend refused to select an arbitrator or submit such dispute to arbitration. The fourth and last of these affirmative defenses charges that respondent Mrs. Friend failed and refused to make payments to the contractors as provided in the building contract, and withholds the same.

After respondent and submitted her evidence at the trial, including the notice to defend and judgment roll above mentioned appellant insisted that the complaint did not state facts sufficient to constitute a cause of action, and further that the evidence in behalf of respondent Friend was insufficient to entitle her to any relief. The trial court denied each of appellant's motions, to each of which rulings it duly excepted. The...