Halver v. Welle

• Citation: 266 P.2d 1053,44 Wn.2d 288
• Decision Date: 19 February 1954
• Docket Number: No. 32555,32555
• Court: Washington Supreme Court
• Parties: HALVER et ux. v. WELLE et al.

Page 288

44 Wn.2d 288

266 P.2d 1053

HALVER et ux. v. WELLE et al.

No. 32555.

Supreme Court of Washington, En Banc.

Feb. 19, 1954.

Merkel and Cook, Bremerton, for appellants.

E. A. Niemeier, Poulsbo, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from a judgment dismissing an action after the court had sustained a demurrer to plaintiffs' complaint on the ground that the action had not been commenced within the time limited by law.

February 19, 1947, Welle and Billmark, contractors, entered into a written contract with Mr. and Mrs. Halver, to construct a home for them for the agreed price of $8,316, subject to certain conditions and deductions. The home having been completed and certain payments having been made thereon, the contractors, on October 10, 1947, presented the following statement to the Halvers:

'Welle & Billmark--General Contractors

P. O. Box 442, Poulsbo, Wash.

                 Sept. 27--1947
                For Mr. & Mrs Ed Halver
                Contract price           $8316.00
                Received to date          7900.00
                                         --------
                                         $1416.00
                Deduct for paint            75.00
                                         --------
                                         $1341.00
                Extras on job
                  Glass brick               15.00
                  Kitchen window            10.00
                  Extras on cupboard        75.00
                                         --------
                Balance due              $1441.00
                  Less Credit               18.65
                                         --------
                                         $1422.35
                

Paid in full Oct. 10, 1947

Welle & Billmark

by Peter Welle'

The payment of $1,422.35 was made October 10, 1947. It is clear, from the above statement, that there was an error of $1,000 in subtracting $7,900 from $8,316.

This action, seeking the return of the $1,000 overpayment, was commenced January 12, 1953, five years and three months after the payment of October 10, 1947. As stated above, a demurrer to the complaint was sustained and the action dismissed.

The question is whether this action is controlled by the six-year statute of limitations, or by the three-year statute of limitations. The six-year statute has reference to:

'An action upon a contract in writing, or liability express or implied arising out of a written agreement.' RCW 4.16.040, subd. (2).

The three-year statute of limitations has reference to:

'An action upon a contract or liability express or implied, which is not in writing, and does not arise out of any written instrument; * * *.' RCW 4.16.080, subd. (3).

In Caldwell v. Hurley, 41 Wash. 296, 83 P. 318, 320, Caldwell and Hurley signed a note as cosureties. Caldwell was sued on the note and paid the judgment recovered against him. He then sued Hurley for contribution. The trial court held that the liability existing between Caldwell and Hurley by reason of their having written their names on the back of the note was an implied liability arising out of the written agreement, and upon the payment of the balance due by Caldwell, Hurley became legally bound to contribute half of the sum paid by Caldwell. In affirming the judgment we said:

'Said subdivision 2, § 4798, Ballinger's Ann. Codes & St., differs from the statutes of limitation of most, if not all, the other states. In fact, after a painstaking research, we have found no similar statute. The peculiar feature of our statute is that an implied liability arising out of a written instrument is included in the same clause with an express liability arising out of a written contract. The Legislature evidently thereby intended that a certain class of actions should be included within the terms of said section which had not in other states been associated or connected with actions on written instruments or actions founded upon written agreements. The liability for contribution of appellant and respondent is an implied liability, which arose by reason of their becoming co-sureties on the note. If they had not entered into the written contract which resulted from their signing their names on the back of the note, at the time, under the circumstances, and for the purpose, found by the court, there would be no liability. This liability now exists, is contractual in its nature, and is the direct result of that written agreement by which respondent was compelled to make the payment for which he now seeks contribution. * * *'

See also Lindblom v. Johnston, 92 Wash. 171, 158 P. 972, as action for contribution by a cosurety on a bond, which liability had been paid by one cosurety; also Pioneer Mining & Ditch Co. v. Davidson, 111 Wash. 262, 190 P 242, an action for contribution by one guarantor of the indebtedness of a third person against his coguarantor.

In Oregon-Washington, R. & Nav. Co. v. Seattle Grain Co., 106 Wash. 1, 178 P. 648, 650, 185 P. 583, the railroad company delivered wheat under two bills of lading. No tariff rate was specifically named in the bills of lading; however, it was recited that the property was received subject to the tariffs in effect on the date of shipment. In holding that the six-year statute controlled, we said:

'Since the bill of lading is a contract, it is of course a contract in writing, and any action upon the contract, or any action upon a liability, express or implied, arising out of the contract, is within the statute if commenced within six years from the time the cause of action accrued, unless the circumstance that the contract does not specifically name the sum to be cahrged for the carriage, but provides that the sum to be paid shall be the statutory rate, changes the nature of the liability from one on contract, or one arising out of contract, to a liability created by law. It seems clear to us that it does not have this effect. A liability created by statute is one in which no element of agreement enters. It is an obligation which the law creates in the absence of an agreement. But the present liability is not of this sort. The law but fixes the rate to be charged when a contract of carriage is made. In other words, the law does not create the liability; it but determines the amount of the liability created by the express contract of the parties. As such it is not a liability created by statute. It is a liability arising out of the contract which the parties have by their writing expressed.'

See also, Warren v. Rickles, 129 Wash. 443, 225 P. 422.

In Seattle Lodge No. 211, Loyal Order of Moose v. Goodwin Real Estate Co., Inc., 143 Wash. 210, 255 P. 96, 99, the owner of property, contemplating a building, gave a mortgage for $60,000 and, at the same time, entered into an oral agreement by which the mortgagee retained the money and was to make disbursements to the contractor as provided in the construction contract. We held that where the mortgagee failed to pay out the entire sum, the owner's right of action against the mortgagee for the balance due in its hands was an action upon a contract in writing or a liability express or implied, arising out of a written contract. We said:

'An implied liability here in question, we think, clearly arose out of the written instruments evidencing the loan transaction between appellant and respondent, executed on August 3, 1921, less than six years prior to the commencement of this action. The implied liability then so arising from those written instruments, it seems to us, was that appellant would pay over to respondent the full sum of $60,000. The agreement as to the temporary retention of this money by appellant to be paid out on the construction contract did not change the original liability arising out of the written instruments, further than to waive the right on the part of respondent to immediately receive the money. That such obligation resting upon appellant was one 'arising out of a written instrument' is, we think, rendered plain by the six-year statute * * *.'

In Seattle v. Walker, 87 Wash. 609, 152 P. 330, the city had paid interest on local improvement district bonds for the period between the date of the bonds and their delivery to the contractor. We had held in State ex rel. Grant Smith & Co. v. City of Seattle, 74 Wash. 438, 133 P. 1005, that payment of interest between such dates was illegal. In the action to recover from Walker the interest which the city had paid illegally, we said [87 Wash. 609, 152 P. 331]:

'In view of our decision in the Grant Smith Case, it will not be questioned that this payment was a payment made in violation of law, which may be recovered by the city in a proper action. The city has made an unlawful overpayment. The respondent has received an unmerited enrichment the retention of which is unjust, and in equity and good conscience he should repay the city. The law in such cases implies a liability to refund the illegal payment, and, if not...