Peters v. Mackay

• Decision Date: 14 November 1898
• Citation: 20 Wash. 172,54 P. 1122
• Parties: PETERS ET AL. v. MACKAY ET AL.
• Court: Washington Supreme Court

54 P. 1122

20 Wash. 172

PETERS ET AL. v. MACKAY ET AL.

Supreme Court of Washington

November 14, 1898

Appeal from superior court, King county; E. D. Benson, Judge.

Action by W. A. Peters and another, as executors, against E. A Mackay, as principal, and T. D. Hinckley, as surety, on a bond for the performance of a building contract. From a judgment for defendant Hinckley, plaintiffs appeal. Affirmed.

Strudwick & Peters, for appellants.

Fred H Peterson, for respondent.

REAVIS, J.

Defendant Mackay entered into a building contract with Heilbron, now represented by the appellants as executors, for the sum of $1,545. Mackay agreed to furnish all labor and material necessary for the construction of a house, and to complete the same on or before December 22, 1893. The work was to be performed and finished under the direction and to the satisfaction of architects acting as agents of Heilbron, and the contract contained, among others, the following stipulation, with reference to the payment of the contractor Mackay, viz.: That the whole amount should be paid in four installments, according to the progress of the building, and upon certificates of the architects, and all but the last payment to be to the amount of but 75 per cent. of the value of the work done and material furnished, as estimated by the certificate. At the time the contract was executed, Mackay with Hinckley as surety, executed and delivered to Heilbron a bond for the faithful performance of the contract, which contained the following condition: "If the said E. A Mackay shall fulfill said contract according to the terms as therein set forth, and pay or cause to be paid all bills for material and labor in the construction of said building, then the above obligation to be void." Mackay entered upon the work after the execution of the contract, and the first and second installments were paid to him under appellants' contract, according to estimates and certificate. After that, the architects ascertained that some of the laborers were not paid, and that Mackay was using some of the money he had received on payment of the installments for other purposes. They refused to give him a certificate for the third installment, and Mackay then agreed to give orders on Heilbron to the laborers and material men to whom he was in debt on account of the building, which orders were to be approved by the architects and paid by Heilbron. The whole amount...