Martin v. Empire State Sur. Co.

• Decision Date: 26 May 1909
• Citation: 101 P. 876,53 Wash. 290
• Parties: MARTIN et al. v. EMPIRE STATE SURETY CO.
• Court: Washington Supreme Court

101 P. 876

53 Wash. 290

MARTIN et al. v. EMPIRE STATE SURETY CO.

Supreme Court of Washington

May 26, 1909

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by Maude Martin and others against the Empire State Surety Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hayden & Langhorne and John P. Hartman, for appellant.

Blattner & Chester and L. B. Da Ponte, for respondents.

DUNBAR J.

The respondents let a contract to defendant Duff to erect an apartment house in Tacoma for the agreed consideration of $11,628, which contract required a bond for the performance of the contract, in the sum of $2,500, which was executed with appellant as surety. The contract and bond are both made part of the complaint and are exhibits in the case. The contractor, Duff, permitted bills to go unpaid for materials and labor, and liens were filed, part of which were foreclosed, so that, after allowing the full amount of the contract price, there was still due $3,642.64. Actions were commenced to foreclose the liens above mentioned, and upon the commencement of the action defendant Duff and the Empire State Surety Company were notified of the pendency thereof and requested and required to defend the same; but the defendants failed to defend said cause, and plaintiffs were obliged to and did defend the same, and such proceedings were had that judgment was rendered against the plaintiffs in the sum of $2,650, and the property was ordered sold. The complaint alleges certain expenses, including attorney's fees and other expenses incident to the suit, and this suit was brought to recover against the appellant the sum of $2,500, the amount it was liable for on the bond. Demurrer was filed to the complaint, which was overruled. The cause was tried, and judgment was rendered as prayed for.

Exceptions are taken to many of the findings of fact; but, from an examination of the record, we conclude that the findings were justified by the testimony in the case. So that there is practically nothing left but the questions of law involved[53 Wash. 292] --the main contention being that the judgment should be reversed because the respondents did not give notice of the breach of the contract immediately after the occurrence, to wit, about August, 1, 1907, and that the appellant was therefore discharged from liability on the bond; and, second, because the action was not commenced within six months after the time of the first breach, or at least from the notice thereof, which would be six months from August 27, 1907, the action having been commenced in March 1908. The first lien was filed on October 18, 1907. Prior to this, however, on August 22, 1907, the architect gave written notice to the appellant of the contractor's default, and in a few days the agent of the appellant, Mr. Church, called on the architect and said that respondents had violated the contract, and that the appellant claimed to be relieved of any liability.

So far as the question of notice is concerned, this case falls within the decision in the cases of Denny v. Spurr, 38 Wash. 347,...