Neary v. Puget Sound Engineering Co.

• Decision Date: 07 January 1921
• Docket Number: 15907.
• Citation: 194 P. 830,114 Wash. 1
• Court: Washington Supreme Court
• Parties: NEARY et al. v. PUGET SOUND ENGINEERING CO. et al.

194 P. 830

114 Wash. 1

NEARY et al. v. PUGET SOUND ENGINEERING CO. et al.

No. 15907.

Supreme Court of Washington

January 7, 1921

Department 2.

Appeal from Superior Court, King County; Everett Smith, Judge.

Action by Edwin Neary and another against the Puget Sound Engineering Company and another. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Edgar J. Wright, of Seattle, for appellant Neary.

Kelleran & Hannan, of Seattle, for appellant Sparks.

Roberts & Skeel and L. B. Schwellenbach, all of Seattle, for respondents.

TOLMAN, J.

In April, 1919, the respondent Puget Sound Engineering Company entered into a contract with the city of Kent to pave certain streets and, as required by the contract, gave a bond executed by the respondent United States Fidelity & Guaranty Company, conditioned:

'This bond is executed in pursuance of the laws of the state of Washington, as now in force, and is subject to all the provisions thereof, and is entered into with the city of Kent Wash., its mayor and common council, and also for the use of persons who may perform or cause to be performed any work or labor, or or material in the execution of a certain contract made the 25th day of April, A. D. 1919, between the said principal, the Puget Sound Engineering Company, and the city of Kent, its mayor and common council, for the improvement of Harrison street et al., as ordered by Ordinance No 417-418-419-420 approved local improvement district No. 181A 181B, 182A, 182B, and 183, by paving, in accordance with said contract, which contract is hereby attached and made a part hereof.'

The contract attached to and made a part of the bond provides:

'That in consideration of the payments, covenants and agreements hereinafter mentioned to be made and performed by the city of Kent, the contractor hereby covenants and agrees as follows:

'(1) To do all work and furnish all the material necessary to construct, improve and complete certain streets and avenues in the city of Kent, known as the 1919 pavement in accordance with and as described in the attached profiles maps, plans and specifications which are hereby made a part hereof and shall have the same effect as though the same were fully inserted herein, and in full compliance with the terms, conditions and stipulations of this agreement.

'(2) The contractor shall provide and be at the expense of all materials, labor, carriage, tools, implements and conveniences and things of every description which may be requisite for the transfer of materials and for improving, construction and completing the work above described. * * * Provided, that before the making of such final payments the contractor shall show to the satisfaction of the city of Kent that all just debts due all laborers, mechanics, materialmen and persons who have supplied such contractor or subcontractor with material or goods of any kind for this work, have been paid. * * *

'Provided further, that if prior to any payment being made the city received notice from any person or persons that any laborers, mechanics, materialmen or other persons, who have furnished or supplied such contractor or any subcontractor with any labor, service, material, goods or provisions of any kind in connection with the construction of said work have claims against said contractor or any subcontractor, for any such service or things, for which claim any such laborer, mechanic, materialman or other person would be entitled to a lien under the laws of this state were said work not a public work, on a proper claim against the bond in such cases required by law, the city shall have the right to retain out of the payments then due or to become due to said contractor, an amount in addition to the twenty (20) per cent. above provided to be retained until the final completion of said work, sufficient to cover all such claim or claims of which notice shall have been so given until such claim or claims shall have been fully satisfied and paid, and receipts in full for the same shall have been furnished by the said contractor to the city of Kent and the said contractor hereby expressly agrees to pay all such claims. * * *

'(13) The contractor shall not let, assign, or transfer this contract or any interest therein, or sublet the work herein provided to be done, or any part thereof, without the consent of the city of Kent. The contractor shall file with the city a duplicate of all subcontracts made by him as aforesaid. * * *

'(16) The contractor agrees to execute and furnish to the city a good and sufficient corporate surety bond, to be payable to the city of Kent, and to be in the penal sum of the full amount of the contract, conditioned that he will perform the work upon the terms, within the time, and in accordance with the contract, profiles, maps, plans and specifications, and that he will indemnify the city against any direct or indirect damages that shall be suffered or claimed for injuries to persons or property during the construction and improvement of such streets and until the same is accepted; and further conditioned as required by law for the payment of all laborers, mechanics, subcontractors and materialmen, and all persons who shall supply such person or persons or subcontractor with provisions or supplies for the carrying on of such work, and all just debts, dues and demands incurred in the performance of such work. * * *

'(17) The city of Kent promises and agrees with the contractor to employ and does employ him to provide the materials and to do and to cause to be done the work upon said streets and avenues, and to complete and finish the same according to the plans and specifications and the terms and conditions herein contained and referred to for the price aforesaid, and hereby contracts to pay the same at the time and in the manner and upon the conditions above set forth.'

Thereafter the contractor entered into an agreement with one L. P. Harmon, in which contract Harmon agreed:

'To furnish all of the sand and gravel which may be required for the improvement work in the city of Kent for which the parties of the first part hold the contract. * * *

'The party of the second part herein agrees to furnish such sand and gravel at a uniform average rate of not less than fourteen hundred (1,400) cubic yards per week, and the parties of the first part agree to receive not less than the above stated amount per week.

'The party of the second part further agrees that the quality of said sand and gravel shall be acceptable to the city engineer of the city of Kent, and to replace any material which may be condemned by said city engineer of Kent free of any additional cost to the parties of the first part.

'Parties of the first part hereby agree to pay for said sand and gravel as follows: Two dollars and seventeen and one-half cents ($2.17 1/2) per yard delivered in the city of Kent on the work as directed and required by the parties of the first part. * * *

'The said party of the second part hereby agrees and covenants that in the event of his failure to carry out the terms of this contract which would cause the party of the first part unnecessary delay, that the party of the first part shall have the right to purchase such sand and gravel from any other source of supply which they may deem expedient, and that any additional cost by reason of said purchase shall be borne by the party of the second part. The parties of the first part shall have the right to judge as to the advisability of purchasing such materials from other sources. * * *

'It is mutually agreed between the party of the first part and the party of the second part that the value of said sand and gravel shall be considered as forty (40) cents per cubic yard at the bunkers, it being distinctly

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