Pacific Bridge Co. v. U.S. Fidelity & Guar. Co.

• Decision Date: 26 September 1903
• Citation: 33 Wash. 47,73 P. 772
• Court: Washington Supreme Court
• Parties: PACIFIC BRIDGE CO. v. UNITED STATES FIDELITY & GUARANTY CO. et al.

73 P. 772

33 Wash. 47

PACIFIC BRIDGE CO. v. UNITED STATES FIDELITY & GUARANTY CO. et al.

Supreme Court of Washington

September 26, 1903

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by the Pacific Bridge Company against the United States Fidelity & Guaranty Company and another. From a judgment for plaintiff, defendant company appeals. Affirmed.

Burke Shepard & McGilora, for appellant.

Piles, Donworth & Howe, for respondent.

DUNBAR, J.

This is an appeal from a final judgment for plaintiff in an action on a bond given to plaintiff, the contractor in chief for the construction of subdivision No. 1 of the Cedar River water supply system of the city of Seattle, by the defendant Charles P. Church, a subcontractor, for the performance of the excavation on a certain part of that subdivision, and by the defendant the United States Fidelity & Guaranty Company as his surety, conditioned for the faithful performance of his contract, etc. The defendant Church was never served with process, nor has he appeared in the action, and the judgment appealed from runs only against his surety, the appellant. The memorandum of agreement and bond are too long for entry here, but they are not essentially different from ordinary contracts and bonds in such cases. Church entered upon the performance of the contract and incurred indebtedness of provisions and supplies amounting to $286.93 and to laborers for work done $607.11. Respondent demanded of Church that he pay these amounts, and, upon his refusal respondent, in order to protect itself from liability upon the bond which it had executed to the city, paid these claims. It may be stated here that the respondent had executed a bond under the provisions of the statute requiring such bond to be given to municipal corporations, of which we will speak hereafter. Church failing to complete the contract, appellant was notified by the respondent of his failure. The appellant wrote to respondent, denying all liability under the bond, and insisting that the contract had been violated by respondent, and had not been violated by the contractor, Church. Thereafter respondent completed the contract, and within six months from the first breach instituted suit against appellant for the amount of $894.04, which we have mentioned above, and which was all that was due by reason of the breach of the contract at that time. After completing the work, the respondent, by leave of the court, filed an amended and supplemental complaint, setting up the performance of the work by respondent, and the cost thereof. The amended and supplemental complaint alleges the facts set forth in the original complaint, and the additional facts that the contract work had been completed, that respondent had been compelled to pay out for such work the sum of $21,003.59, which was the reasonable cost of completing the contract, and that all of said sum except the sum of $984.04 was paid by respondent since the institution of the first suit; that for said work respondent had been paid by the city of Seattle the sum of $17,244.37; that, by reason of the failure of Church to perform the contract, and by reason of the failure of the defendants to repay the respondent the amount which the respondent had been compelled to pay for the performance of the contract over and above the sum which the city had paid it, the conditions of the bond had been broken, and respondent had been damaged in the sum of $3,759.22, and demand was made for that sum. At the trial the court limited respondent's right of recovery to the amount paid out by respondent for work, labor, and material in the prosecution of the work, which amounted to the sum of $2,831.93, for which judgment was obtained by directed verdict, there seeming to be no disputed questions of fact.

This judgment is appealed from, and the following errors assigned: (1) Error in overruling appellant's demurrer to the complaint; (2) in granting the plaintiff leave to file the amended and supplemental complaint, and in overruling appellant's demurrer thereto; (3) in overruling the appellant's objection to evidence of the new matter pleaded in the amended and supplemental complaint; (4) in overruling the appellant's objection to any evidence for the plaintiff on the ground of defect of parties defendant; (5) in admitting in evidence the bonds given by the plaintiff to the city of Seattle in connection with the contract in chief between the plaintiff and the city; (6) in admitting in evidence certain sections of the general clauses appended to the contract in chief; (7) in admitting sundry insufficient and incompetent evidence to prove the plaintiff's expenditures in completing the work embraced in the subcontract in suit; (8) in admitting sundry evidence of improper items as part of said expenditures; (9) in denying appellant's motion for nonsuit; (10) in excluding sundry evidence offered by appellant tending to establish certain affirmative defenses pleaded on its part; (11) in refusing to direct a verdict in favor of appellant and in directing a verdict in favor of plaintiff for the sum of $2,831.93; (12) in denying appellant's motion for a new trial and entering judgment on the verdict.

Concerning the first assignment, we think the liability of the defendants upon the bond was well established in the original complaint. It is possible that, in response to a motion to make more definite and certain, the cause of action might have been stated with a little more particularity, but the whole complaint sets forth the contract and the bond. The arrangement in which they appeared in the complaint could not be material. Under the provisions of the bond it was Church's duty to faithfully perform his contract and to pay the claims of any person against the respondent or himself, caused by any...