Ilse v. Aetna Indem. Co.

• Decision Date: 16 August 1912
• Citation: 125 P. 780,69 Wash. 484
• Court: Washington Supreme Court
• Parties: ILSE v. AETNA INDEMNITY CO.

125 P. 780

69 Wash. 484

ILSE v. AETNA INDEMNITY CO.

Supreme Court of Washington

August 16, 1912

Department 1. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by August Ilse against the AEtna Indemnity Company. Judgment for defendant, and plaintiff appeals. Affirmed.

F. W Girand and Robertson & Miller, for appellant.

Peters & Powell, of Seattle, and W. E. Cullen, of Spokane, for respondent.

GOSE J.

This is a suit upon an indemnity bond. A demurrer to the complaint was sustained, and, upon the plaintiff's statement that he would stand upon his complaint, a judgment of dismissal was entered. The plaintiff has appealed.

The bond, which is made a part of the complaint, provides 'If any suits at law or proceedings in equity are brought against said surety to recover any claim hereunder, the same must be instituted within six months after the completion of the work specified in said contract.' The complaint alleges that the appellant had a contract for the erection of a courthouse and jail in Shoshone county, the state of Idaho; that on the 21st day of July, 1905, the International Fireproof Construction Company, a copartnership, undertook and agreed with him to do certain work thereon; that on the 31st day of July following the copartners, as principals, and the respondent, as a surety, executed the bond in suit, conditioned for the faithful performance of their contract; that they failed to perform their contract, and wholly abandoned it about the 1st day of April, 1906; that the appellant was compelled to and did complete the work required by their contract at an expense to him of $15,000 in excess of the price for which they had contracted to do the work; that on the 15th day of February, 1907, the appellant commenced an action in the superior court of Spokane county, based upon the architect's certificate, to recover the amount expended by him; that the action was dismissed without prejudice, and that, upon appeal to this court, the judgment was affirmed on the 4th day of November, 1909, the remittitur being filed in the court below on the 4th day of January, 1910; that the action was dismissed, on the ground that the appellant had mistaken his remedy in suing upon the certificate of the architect, instead of upon a quantum meruit; and 'that plaintiff pursued his said remedy upon advice of counsel, and any delay in instituting this action was occasioned by the facts hereinbefore set forth and an endeavor to determine his remedy, and the said delay, if any, has not injured or placed the defendant at a disadvantage in the defense of said action, or at all.'

The original complaint in this case was verified July 19, 1910 and service was made on August 15th following. The suit is upon a quantum meruit. The bond runs directly to appellant, and recites that the respondent is 'a corporation existing under and by virtue of the laws of the state of Connecticut.' A reference to the dates given discloses that this suit was commenced more than three years after 'the completion of the work specified in said contract,' quoting from the stipulation in the bond, and more than six months after the filing of the remittitur from this court in the court below. We think the demurrer was properly...