Ledingham v. City of Blaine

• Decision Date: 10 January 1919
• Docket Number: 14959.
• Citation: 177 P. 783,105 Wash. 253
• Court: Washington Supreme Court
• Parties: LEDINGHAM et al. v. CITY OF BLAINE et al.

177 P. 783

105 Wash. 253

LEDINGHAM et al. v. CITY OF BLAINE et al.

No. 14959.

Supreme Court of Washington

January 10, 1919

Department 1.

Appeal from Superior Court, Whatcom County; Ed. E. Hardin, Judge.

Action by George W. Ledingham and others against the City of Blaine and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Walter B. Whitcomb, of Bellingham, for appellants.

Sather & Livesey, of Bellingham, for respondents.

MACKINTOSH J.

Respondent Schrimser furnished a team and driver for work upon a contract for the grading of streets in the city of Blaine. The team and driver were furnished to a subcontractor, who agreed to pay therefor $6.50 per day, $2.50 representing the man's wages and $4 representing pay for the use of the team. Schrimser, not having been paid, filed notice of claim against the bond furnished by the principal contractor and in this action is asserting that claim. Schrimser did not within 10 days after beginning to furnish the use of the man and team to the subcontractor, notify the principal contractor in writing that he had commenced to deliver materials, supplies, or provisions for use upon the work.

The claimant rests his right to recover without having given the 10 days' notice required by chapter 167, Laws of 1915 upon the theory that he was not furnishing 'materials supplies, or provisions,' but was furnishing 'labor.'

There is no question that the furnishing of a man for work would be furnishing 'labor,' and it is equally as unquestionable that the furnishing of a team would be furnishing a supply. National Surety Co. v. Bratnober Lumber Co., 67 Wash. 601, 122 P. 337; Hurley-Mason Co. v. American Bonding Co., 79 Wash. 564, 140 P. 575; State Bank of Seattle v. Ruthe, 90 Wash. 636, 156 P 540. These cases defined the use of teams as a 'supply' under the law as it existed prior to the passage of the law of 1915, but we must assume that when this law was passed there was incorporated in it the judicial definition that had theretofore been given to the word 'supply.'

The record before us shows that Schrimser was furnishing both labor and supplies for his contract called for $2.50 per day for the wages of the driver, and these have already been paid, and $4 per day for the use of the team; the contract being thus severable both by its terms and by its performance. The claim for the amount due for the use of the team is not collectible in...