Hurley-Mason Co. v. American Bonding Co.

• Decision Date: 08 May 1914
• Docket Number: 11,906.
• Citation: 140 P. 575,79 Wash. 564
• Parties: HURLEY-MASON CO. v. AMERICAN BONDING CO.
• Court: Washington Supreme Court

140 P. 575

79 Wash. 564

HURLEY-MASON CO. v. AMERICAN BONDING CO.

No. 11,906.

Supreme Court of Washington

May 8, 1914

Department 2. Appeal from Superior Court, Pierce County; C. M Easterday, Judge.

Action by the Hurley-Mason Company against the Washington Engineering Company and the American Bonding Company. Judgment for plaintiff, and defendant bonding company appeals. Affirmed.

Hayden Langhorne & Metzger, of Tacoma, for appellant.

T. L Stiles, of Tacoma, for respondent.

PARKER J.

This is an action upon a bond executed by the Washington Engineering Company, as principal, and the American Bonding Company, as surety, under section 1159, Rem. & Bal. Code, relating to contractors' bonds to secure debts incurred by them in the performance of public work. The defendant bonding company demurred to the complaint, which demurrer was, by the trial court, overruled. Thereupon the bonding company elected not to plead further, but to stand upon its demurrer, when judgment was rendered against it by the trial court, as prayed for in the complaint. From this disposition of the cause, the bonding company has appealed.

In the complaint it is alleged: 'That heretofore, and on or about July 7, 1911, the defendant Washington Engineering Company entered into a contract in writing with the city of Tacoma, a municipal corporation of the first class, located in said county of Pierce, to furnish the labor and material necessary for the erection of a certain vertical lift bridge over the Puyallup river for a consideration of $132,654; and that thereupon, as required by law and the ordinances of said city, said Washington Engineering Company, as principal, and said American Bonding Company of Baltimore, as surety, executed and delivered to said city of Tacoma their bond obligatory, wherein and whereby they bound themselves jointly and severally in the penal sum of $33,138.50, that the said principal would faithfully perform all of the provisions of said contract in the manner and within the times therein set forth, and would pay all laborers, mechanics, subcontractors, and materialmen, and all persons who should supply said principal or subcontractors with provisions and supplies for the carrying on of said work, all just debts, dues, and demands incurred in the performance of said work. A copy of said bond is hereto annexed and made a part hereof, being marked 'Plaintiff's Exhibit A.' That, in the performance of said work, said Washington Engineering Company required the use of a pump and a hoist derrick, and this plaintiff thereupon, at said defendant's instance and request, loaned and rented one pump and one hoist derrick to said defendant for use in the performance of said work and which said defendant used in its performance thereof.' This is followed by an allegation of the reasonable rental value of the pump and hoist derrick, and also by an allegation of the filing of the plaintiff's claim with the city against the bond, as provided by section 1161, Rem. & Bal. Code. The conditions of the bond attached as an exhibit to the complaint, so far as we need notice the same here, are that the engineering company 'shall pay all laborers, mechanics, subcontractors, and materialmen, and all persons who shall supply said principal or subcontractors with provisions and supplies for the carrying on of said work, all just debts, dues, and demands incurred in the performance of said work.' These conditions of the bond are required by statute.

It is contended by counsel for the bonding company that the rental value of the pump and hoist derrick is not secured by the bond. Our problem is reduced to the inquiry: Do the words 'provisions and supplies,' as used in the statute and bond here relied upon by respondent, include the rental of the pump and hoist derrick furnished by respondent. This question comes at least very near, if not quite, being answered in favor of respondent by our decision in National Surety Co. v. Bratnober Lumber Co., 67 Wash. 601, 615, 122 P. 337, where it was held that a bond containing these conditions, and given under this statute, secured the value of the services of teams with drivers furnished to the contractor by a third person. Some observations were there made likening such service to labor, but the real ground upon which the holding rests is that the furnishing of the service of teams with drivers was the furnishing of 'supplies,' within the meaning of the law and the conditions of the bond. A number of decisions are relied upon by counsel for the bonding company which have to do with the construction of lien laws securing liens for labor performed upon, or material furnished in, the structure involved. We think, however, a critical reading of these decisions will demonstrate that they are not controlling here. We will notice the principal decisions so relied upon by counsel for appellant.

In Hall v. Cowen, 51 Wash. 295, 98 P. 670, it was held that a claim for the rental of scrapers due to their owner from a contractor, who used them in clearing and grading lots, was not a lienable claim under the statute giving a lien upon land in favor of one who, at the request of the owner, 'clears, grades, fills in or otherwise improves the same.' That statute does not give a lien to one furnishing...