Rachow v. Philbrick & Nicholson, Inc.

• Decision Date: 25 June 1928
• Docket Number: 21044.
• Citation: 268 P. 876,148 Wash. 214
• Court: Washington Supreme Court
• Parties: RACHOW v. PHILBRICK & NICHOLSON, Inc., et al., and three other cases.

268 P. 876

148 Wash. 214

RACHOW

v.

PHILBRICK & NICHOLSON, Inc., et al., and three other cases.

No. 21044.

Supreme Court of Washington

June 25, 1928

Department 1.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Separate actions by Fred Rachow, A. E. Wilber, Fred Carlson, and Arman Wilber against Philbrick & Nicholson, Inc., the Maryland Casualty Company, and another. From judgments for plaintiffs the named defendants appeal. Affirmed in part and reversed in part.

Roberts Skeel & Holman and Elwood Hutcheson, all of Seattle, for appellants.

Nelson R. Anderson, of Seattle, amicus curiae.

Dysart & Ellsbury, of Centralia, Troy & Yantis, John H. Dunbar and V. D. Bradeson, all of Olympia, for respondents.

TOLMAN J.

Appellant Philbrick & Nicholson, Inc., contracted with the state through its highway committee to clear, grade, and construct a certain state highway. Appellant Maryland Casualty Company became the surety on the contractor's bond given to the state. After the work was completed and accepted by the state, thirteen separate actions were commenced in the superior court for Thurston county against the contractor the bond, and the reserve fund in the hands of the state. Eleven of these actions were to recover for material and supplies furnished to and through respondents Rachow and A. E. Wilber, who had entered into written subcontracts, and the remaining two were upon the claims of the respondents last named.

The actions were tried together to the court sitting without a jury, resulting in judgments against the contractor and the surety, and they have appealed from four of these judgments only. By stipulation, these four cases are consolidated for the purpose of this appeal.

In the interest of clarity and brevity, we will state only such facts as are necessary to an understanding of each point raised, in conjunction with the point discussed.

1. Those here claiming for materials furnished filed their claims with the state highway department and afterwards, but within thirty days after the completion and acceptance of the work, again filed substantially the same claims. The actions were commenced within four months after the last filing. Appellants contend that the claimants were bound by the first filing in each instance, and that, suits not having been commenced within four months after the first filing, the bond is released, or, in other words, that by refiling their claims the claimants cannot extend the period fixed by the statute, and are bound by their first act of filing. We seem never to have passed upon this identical question, but it involves exactly the same principle as the taking of appeals and the filing of mechanic liens, and we think we cannot sustain appellants' contentions without, in effect, overruling Lindley v. McGlauflin, 58 Wash. 636, 109 P. 118; Sligh v. Shelton Southwestern R. R. Co., 20 Wash. 16, 54 P. 763; Tatum v. Geist, 40 Wash. 575, 82 P. 902; Carstens & Earles v. Seattle, 84 Wash. 88, 146 P. 381, Ann. Cas. 1917A, 1070. We conclude that this objection is not well taken.

2. The claimants furnishing material to and through respondents Rachow and A. E. Wilber, who had entered into written subcontracts with the principal contractor, did not give to the principal contractor a ten days' notice as provided for in section 1159-1, Rem. Comp. Stat. The omission to give the statutory, or any notice, was by the trial court held immaterial because of a certain provision of the contract between the principal contractor and the state, which reads:

'Responsibility nontransferable:

'XIII. The contractor shall not let, assign, or transfer this contract, or any interest therein or any part thereof, without the consent, in writing of the state highway engineer.

'The contractor shall give his personal attention to the work at all times, and shall be present, either in person or by duly authorized representative, on the site of the work continually during its progress, and shall receive instructions from the state highway engineer. Any subcontractor shall be considered the agent of the contractor, and the latter shall be responsible for any indebtedness incurred by such agent. If any subcontractor fails to perform his work in a satisfactory manner, his subcontract may be terminated by the state highway engineer,'

--and because it was stipulated that the state never in any was consented to or recognized the subcontracts.

Appellants and amicus curiae argue with much confidence and considerable force that our cases of Crane Co. v. Maryland Casualty Co., 102 Wash. 59, 172 P. 866, and Cascade Construction Co. v. Snohomish County, 105 Wash. 484, 178 P. 470, are not decisive upon this question, and that if, as they contend, this provision was inserted in the contract for the benefit of the state alone, respondents cannot claim protection thereunder.

The bond here involved was a statutory bond, and its terms applicable to the question now under consideration seem to be identical with the provisions of the bonds considered in the cases cited. The contract here does not require the filing of the subcontracts with the state, but, in view of the conditions already quoted, we cannot now see that this difference warrants any distinction. In the Crane Co. Case, the question of the giving of the ten days' notice was not raised. Hence that case may not be directly in point upon that issue, but, in the Cascade Construction Co., Case, the failure to give the ten days' statutory notice was directly raised and relied upon, and, after analyzing the holding in the Crane Case, this court there said:

'What was meant there was that, so far as the original contractor and the surety upon that contract were concerned, Musgrave and Blake were agents of the original contractor for the purpose of purchasing supplies used in the building. There was no question of notice in that case, and the use of the word 'subcontractors' was to denote agency, as the whole context indicates. In so far as these claimants are concerned, under the facts in this appeal, the subcontract as to them was of no force. The provision in the original contract that the contractor shall not let, assign or sublet the work provided to be done, or any part thereof, without the consent of the board, and that the contractor shall file with the board a duplicate of all contracts made by him as aforesaid, was for the protection not only of the board itself, but of all persons who furnished supplies, material and provisions for the work to be done; and since that contract was not filed with the board as the original contract required, it gave no notice to persons furnishing material or supplies that they were not furnishing such supplies for the original contractor, whose contract was on file. When the original contractor fails to file his subcontract he thereby waives the right to the notice required by Rem. Code, § 1159-1.'

This language answers every contention now made, and holds directly that a provision in the contract such as we have here is not made for the protection of the state alone, but also for the protection of those furnishing material. The state has an interest in seeing that the material going into its work is paid for, that its citizens are not deprived of their just dues, and that no causes for dissatisfaction and litigation shall arise to the embarrassment or loss of any concerned in completing the work. Wholesome and necessary as the statutory notice is, we cannot hold that the party most to be benefited thereby may not, as was done here, contract directly with the state, that, in the absence of consent by the state, any person with whom he may subcontract shall be his agent, and he will be responsible for any indebtedness contracted by such agent.

3. The next question raised is as to the lienability or the right to recover against the bond on the Carlson claim. That claim, so far as allowed by the trial court, was for the shoeing of horses used by the respondent A. E. Wilber in carrying out his subcontract. Respondent argues that the shoeing of horses is not repairing in the sense that tools and equipment used on the job might be repaired, but that it is in principle the same as feed for the horses, something necessary to keep them fit for the work and on the job, and relies upon the case of National Surety Co. v. Bratnober Lumber Co., 67 Wash. 601, 122 P. 337. The gist of that decision upon this point is found in the following language:

'It seems to us that the words 'provisions' and 'supplies' includes anything that is furnished for, and used directly in the carrying on of the work, and is entirely consumed thereby. Such things do not enter into and become a physical part of the finished structure, as materials do, as that word is generally construed; but they do become as much a part of the structure as the labor which is performed upon it. It seems quite clear to us that coal, horse feed, and work performed by teams, all come within the terms of the prescribed statutory conditions of this bond, which become the measure of the rights of the several claimants.'

Were the shoes put upon the horses necessarily entirely consumed in the work? Manifestly not. Horseshoes are not necessarily renewed from day to day, and are not daily entirely consumed, as is the feed which is eaten. The shoes may remain serviceable for weeks or months, and the horses shod on this job may expend the larger part of the benefits of such shoeing on a subsequent job. The subject was again considered by this court in United States Rubber Co. v. American Bonding Co., 86 Wash. 180, 149 P. 706, L. R. A. 1915F, 951, where it was said:

'A supply would be any article furnished for carrying on the work which from its nature is necessarily

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