Mondioli & Stewart v. American Bldg. Co.

• Decision Date: 16 January 1915
• Docket Number: 12031.
• Citation: 83 Wash. 584,145 P. 577
• Court: Washington Supreme Court
• Parties: MONDIOLI & STEWART v. AMERICAN BLDG. CO.

145 P. 577

83 Wash. 584

MONDIOLI & STEWART v. AMERICAN BLDG. CO.

No. 12031.

Supreme Court of Washington

January 16, 1915

Department 2. Appeal from Superior Court, Spokane County; J. D. Hinkle Judge.

Action by Mondioli & Stewart against the American Building Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Wakefield & Witherspoon and Harry T. Davenport all of Spokane, for appellant. win H. Flick, of Seattle, for respondents.

MOUNT J.

This action was brought to foreclose a lien against certain property belonging to the American Building Company. The cause was tried upon issues made by the pleadings and resulted in a judgment in favor of the plaintiffs and against the American Building Company for $1,928.86. The American Building Company has appealed from that judgment.

The respondents move to dismiss the appeal for the reasons First, that the testimony has not been brought up and has not been abstracted; second, because the abstract makes no reference to the evidence; and, third, because the brief of the appellant makes no reference to the pages of the abstract. In answer to the first two grounds of this motion it is sufficient to say that the appellant makes no question upon the evidence. It relies wholly upon the findings made by the trial court. It was therefore unnecessary to bring the evidence here. The appellant has not referred to the pages of the abstract in its brief. But the findings relied upon are in the abstract and are quoted in full in the brief; and we think the cause ought not to be dismissed because the pages of the abstract are not referred to in the brief. The motion is therefore denied.

It appears from the findings of the trial court that on the 5th day of May, 1910, the respondents and the appellant entered into a contract whereby the respondents agreed to do certain plastering upon a building being constructed by the appellant in the city of Spokane according to plans and specifications prepared for the work. The contract provided at article 3 as follows:

'No alterations shall be made in the work except upon written order of the architect, the amount to be paid by the owner, or allowed by the contractors by virtue of such alterations, to be stated in said order. * * *'

The contract also provides at article 9:

'It is hereby mutually agreed between the parties hereto that the sum to be paid by the owners to the contractors for said work and materials shall be $14,710, subject to additions and deductions as hereinbefore provided, and that such sum shall be paid by the owners to the contractors in current funds, and only upon certificates of the architect as follows: Payments to be made to the amount of eighty per cent. of the work done on the building every two weeks.'

It seems that, before this contract was entered into, the American Building Company had some negotiations with a company, known as the Architectural Decorative Company, for doing the work, and there was some fear that that company might claim the contract under these negotiations. Before letting the contract in question to the respondents, the appellant required of the respondents a bond in the sum of $2,950, to the effect that they would save the appellant from any liability to the Architectural Decorative Company in case that company should make a claim against the appellant. This bond was furnished by the respondents, and recited that:

'Whereas, the principals herein, to wit, the copartners of Mondioli & Stewart, are desirous of obtaining the contract for the work mentioned on the building of the American Building Company and have agreed to indemnify and save harmless the American Building Company in the manner above mentioned: Now, therefore, the condition of this obligation is such that if the above bounden William Stewart and A. Mondioli, copartners doing business as Mondioli & Stewart, * * * shall defend and keep harmless and indemnify said American Building Company, its successors or assigns, from all claims, demands, liabilities, or claims for damage or damages that the said Architectural Decorative Company might have or claim against the said American Building Company, * * * then the above written bond to be void, otherwise the same to remain in full force and effect. It is further agreed that the American Building Company may and shall retain the final twenty per cent. payment under its contract to be entered into with the principals herein, as additional indemnity against any costs, expenses, or damages or claims of the Architectural Decorative Co. against the American Building Co., said twenty per cent. to be retained until the principals herein shall have obtained a receipt in full of all claims and demands of the Architectural Decorative Co., or until any claims that said Architectural Decorative Co. might have shall have been outlawed by the statute of limitations.'

This bond was given as a part of the contract. The court so found.

Upon the trial of the case the court found that this contract had been entered into between the parties; that the work upon the building had been done by the respondents; that the respondents had been paid by the appellant the full sum of the original contract price, with the exception of $51; but that extras had been ordered and put into the building which amounted to $1,863.46. The court also found as follows:

'The court further finds that, at the time of the entering into

...