Robinson v. Lewis County

• Decision Date: 06 January 1927
• Docket Number: 20141.
• Parties: ROBINSON et al. v. LEWIS COUNTY.
• Court: Washington Supreme Court

252 P. 143

141 Wash. 642

ROBINSON et al. v. LEWIS COUNTY.

No. 20141.

Supreme Court of Washington

January 6, 1927

Department 1.

Appeal from Superior Court, Lewis County; Reynolds, Judge.

Consolidated actions brought by George A. Robinson and others against Lewis County. Judgments for plaintiffs, and defendant appeals. In each case judgment reversed, and cause remanded with directions.

Tolman C.J., dissenting.

Roberts & Skeel, of Seattle, D. G. Abel, of Chehalis, and J. H. Jahnke, of Centralia, for appellant.

Dysart & Ellsbury, of Centralia, Cosgrove & Terhune, and Paul S Dubuar, all of Seattle, and W. E. Bishop, O. A. Tucker, Hall & Murray, and Forney & Ponder, all of Chehalis, for respondents.

MAIN J.

A number of persons who furnished material or labor to a contractor for the construction of a bridge in Lewis county brought separate actions against the county for the material or labor so furnished. In the superior court the actions were consolidated. The trial resulted in a judgment sustaining a recovery on the part of the claimants. From this judgment the county appeals.

On April 19, 1923, the county entered into a contract with one C. L. Graves for the purpose of the construction of a bridge over the Chehalis river. As the work progressed the claimants, as stated, furnished labor or material. Graves defaulted, and they were not paid.

Section 1159, Rem. Comp. Stat., in part provides that, when a county or other municipality shall enter into a contract for the making of a public improvement, the contractor shall give a bond conditioned that he shall pay all labor and materialmen's claims, and that such persons shall have a right of action against the bond. Section 1160 provides that, if the county or other municipal corporation shall fail to take such bond, it 'shall be liable to the persons mentioned in section 1159, to the full extent and for the full amount of all such debts so contracted by such contractor.'

In the present case the county took a bond from Graves, but it was not the statutory bond provided for, and in Wallace Equipment Co. v. Graves, 132 Wash. 141, 231 P. 458,

it was held that the bond so taken did not protect those furnishing material or labor that went into the construction of the bridge.

The actions here involved were begun more than two years after the furnishing of the labor or material and less than three years. The question is whether the three-year or the two-year statute furnishes the limitation as to when an action may be instituted against the county when it has failed to take the bond required by statute. Section 159, Rem. Comp. Stat., so far as here material, provides:

'Within three years, * * * 3. An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument. * * *'

Section 165 provides:

'An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.'

It has been held by this court that the three-year statute, which covers the matter of commencement of actions upon a contract or liability, express or implied, refers only to contractual obligations. In Suter v. Wenatchee Water Power Co., 35 Wash. 1, 76 P. 298, 102 Am. St. Rep. 881, it was said:

'The term 'liability,' used in said subdivision, was evidently intended to refer to a contractual liability. Such, in effect, was the decision in Sargent v. Tacoma, 10 Wash. 212, 215, 38 P. 1048. The same statute was so construed by the United States Circuit Court, District of Washington, in Aldrich v. Skinner, 98 F. 375, and also in Aldrich v. McClaine, 98 F. 378. The last named case was, on appeal to the United States Circuit Court of Appeals, reversed. Aldrich v. McClaine, 106 F. 791. The reversal was, however, upon the ground that the liability involved was a contractual one, the lower court having held otherwise. The appellate court construed the statute itself as did the lower court. For similar construction, see McGaffin v. City of Cohoes, 74 N.Y. 387, 30 Am. Rep. 307, and Thomas v. Union Pacific R. Co., 1 Utah, 235.'

In Northern Grain & Warehouse Co. v. Holst, 95 Wash. 312, 163 P. 775, it was said:

'In so far as this subdivision has been interpreted by this court or by the federal courts, the word 'liability' is held to refer to a contractual liability, and not a liability growing out of a negligent act.'

From those cases it must follow that, unless the failure of the county in the present case to take the statutory bond created a liability in its nature contractual, there can be no recovery. As stated, the material and labor were furnished at the instance of the contractor. There was no liability on the part of the county to pay for the same in the absence of a statute creating it. The statute (section 1160, supra) fixes such liability on the county only in cases where it has failed to take bond required by section 1159. This is a liability created solely by the statute, and has in it no element of contract. In Oregon-Wash. R. & Nav. Co. v. Seattle Grain Co., 106 Wash. 1, 178 P. 648, 185 P. 583, it was said:

'A liability created by statute is one in which no element of agreement enters. It is an obligation which the law creates in the absence of an agreement.'

In principle, the present case cannot be distinguished from that of Douglas County v. Grant County, 98 Wash. 355, 167 P. 928. There Douglas county sought to hold Grant county on a liability created by statute, and it was held that the action fell within ...