Longview School Dist. No. 112 of Cowlitz County v. Stubbs Elec. Co.
| Decision Date | 23 January 1931 |
| Docket Number | 22704. |
| Citation | 160 Wash. 465,295 P. 186 |
| Parties | LONGVIEW SCHOOL DIST. NO. 112 OF COWLITZ COUNTY v. STUBBS ELECTRIC CO. et al. |
| Court | Washington Supreme Court |
Department 2.
Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.
Action by Longview School District No. 112 of Cowlitz County against the Stubbs Electric Company and another. From the judgment plaintiff appeals.
Affirmed.
Fisk & McCarthy, of Longview, for appellant.
M. B Meacham, of Portland, Or., and William Stuart, of Kelso, for respondents.
The parties to this controversy appeared in this court in cause No. 21827, reported in 153 Wash. 33, 279 P. 86, and reference should be made to that case and the opinion there should be read in connection with the opinion here. In cause No. 21827 supra, the Stubbs Electric Company, as plaintiff, in its complaint sought to be subrogated to the rights of the Fidelity & Casualty Company as against the Longview school district No. 112, of Cowlitz county. The school district interposed a demurrer to the complaint which the trial court sustained. The electric company appealed, and we held that the principle of subrogation applied and reversed and remanded the cause with directions to the trial court to overrule the demurrer. This was done. Later the case came on for trial on the same complaint. No testimony was taken as the parties by written stipulation submitted the facts to the court. The facts are:
On June 30, 1926, one W. A. Hammond entered into a contract with the school district to furnish materials and labor in the construction of a school building for which he was to receive $3,300. Hammond was required to execute a bond guaranteeing the faithful performance of his contract, and applied to the respondent the Fidelity & Casualty Company to execute a bond on his behalf, as surety, which it refused until and unless it was indemnified against loss or damage, and thereupon Hammond agreed with the respondent Stubbs Electric Company to purchase from it all supplies to be used in the construction of the school building, and in consideration therefor the electric company agreed to and did indemnify the surety company against all loss or liability on its bond for Hammond, and immediately thereafter the bond was executed by Hammond as principal, and the Fidelity & Casualty Company, as surety. Hammond completed the work on the school building December 16, 1926. Under both the contract and the bond the school district was required to retain 15 per cent. of the contract price, amounting to $495, for a period of thirty days after the completion of the contract and acceptance by the architect. The school district, however, contrary to the terms of both these instruments, paid Hammond the full contract price before the expiration of the thirty-day period. On January 10, 1927, and within the thirty-day period, the International Time Recording Company presented and filed an unpaid claim of $967 for materials furnished Hammond in the work, with the surety, and it in turn referred the claim to the Stubbs Electric Company, the indemnitor. On April 9, 1927, the surety, in writing, demanded of the school district that it pay the sum of $495 to apply on the claim of the International Time Recording Company, and informed the school district that it it refused payment and suit was brought by the recording company all costs and attorneys fees incurred thereby would be charged against it. The school district, however, refused to pay. On September 1, 1927, the International Time Recording Company recovered judgment against the surety for $967 and interest, including an attorneys' fee of $120 and costs, $33.20. On the same day, but before judgment was entered, the surety again demanded payment of the school district, which it again refused. Judgment was then entered against the surety, and the Stubbs Electric Company, in accordance with its indemnity agreement, satisfied the judgment which, including attorneys' fees, costs, and interest, amounted to $1,177.58. In addition thereto it paid attorneys' fees and costs of $153 incurred by the surety in defending the action brought against it by the International Time Recording Company. On these facts the trial court held that the Stubbs Electric Company was entitled to be subrogated to the rights of the surety company as against the school district, and awarded judgment against the school district for $801.20. From this judgment the school district has appealed.
There are but two questions presented: First, does the doctrine of subrogation apply? Second, if it does apply, is the appellant liable for the attorneys' fees and costs amounting to $306.20?
The first question was presented to this court in cause No. 21837, supra. In overruling the demurrer, we said:
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