Kent Lumber Co. v. Ward

• Decision Date: 11 February 1905
• Citation: 79 P. 485,37 Wash. 60
• Court: Washington Supreme Court
• Parties: KENT LUMBER CO. v. WARD et al. (GAL BRAITH, BACON & CO., Intervener.

79 P. 485

37 Wash. 60

KENT LUMBER CO. v. WARD et al. (GAL BRAITH, BACON & CO., Intervener.

Supreme Court of Washington

February 11, 1905

Appeal from Superior Court, King County; Frank H. Rudkin, Judge.

Action by the Kent Lumber Company against Ira P. Ward and others (Galbraith, Bacon & Co., intervener). From a judgment denying the relief prayed for, intervener appeals. Affirmed.

Roberts & Leehey, for appellant.

George E. De Steiguer, R. R. George, and John P. Hartman, for respondent.

HADLEY J.

In this action Galbraith, Bacon & Co., a corporation, by way of intervention, seeks to foreclose a mechanic's lien. The account was originally held by one Bamberg, and was for labor and material furnished in the construction of a house for the defendant Hattie E. Spittle. The account, with any right to assert a lien, was assigned by Bamberg to said intervener, and the latter thereafter filed a notice claiming a lien. Bamberg was a subcontractor in the construction of the building, one Ward being the principal contractor. Ward gave to the defendant Hattie E. Spittle, owner of the property, a contractor's indemnifying bond, with the National Surety Company as surety. Ward and Bamberg also gave to said surety company a contract of indemnity whereby they bound themselves to save the surety company harmless from loss or damage on account of the building contract, and the said bond given to secure it. The answer denies the material allegations of the complaint and affirmatively avers the foregoing facts concerning the contractor's bond and the surety indemnifying contract which are urged as amounting to a waiver by Bamberg of any right to a lien. The cause was tried by the court, and resulted in a judgment denying the lien and dismissing the complaint in intervention. The intervener has appealed from the judgment.

The principal argument made by appellant is based upon the theory that the court decided the case upon the ground that Bamberg appellant's assignor, had waived his right to a lien. An oral remark made by the court when deciding the case indicates that such was his theory. It is urged by appellant that there was no evidence upon the subject, and that the court's conclusion is therefore erroneous. It was the court's theory, however, that the facts which it held amounted to a waiver of the right to a lien were admitted by the pleadings. The answer alleged that the contractor's bond was given to protect the...