School Dist. No. 75 of Pierce County v. Qualls

• Decision Date: 07 March 1917
• Docket Number: 13865.
• Citation: 95 Wash. 247,163 P. 761
• Court: Washington Supreme Court
• Parties: SCHOOL DIST. NO. 75 OF PIERCE COUNTY et al. v. QUALLS et al.

163 P. 761

95 Wash. 247

SCHOOL DIST. NO. 75 OF PIERCE COUNTY et al. v. QUALLS et al.

No. 13865.

Supreme Court of Washington

March 7, 1917

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by School District No. 75 of Pierce County and others against J. F. Qualls and another. From judgment of dismissal plaintiffs appeal. Affirmed.

Fred G. Remann, Harry E. Phelps, and A. B. Bell all of Tacoma, for appellants.

William E. Froude and Higgins & Hughes, all of Seattle, for respondents.

MORRIS J.

In September, 1913, appellant school district entered into a contract with respondent Qualls for the erection of a school building. Respondent the Chicago Bonding & Casualty Company entered into a bond as surety for Qualls for the faithful performance of this contract. Qualls abandoned the contract before the completion of the building leaving unpaid several claims for labor and material. These several claimants brought suit against the school district and obtained judgments for the several amounts due which the school district paid. This action was then commenced against Qualls and his surety to recover the amount so paid, adding a second cause of action for damages for negligent construction of the building. The bonding company demurred to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action against it. The demurrer was sustained, and, the school district electing to stand upon its complaint, judgment of dismissal was entered, and it appeals.

It is conceded that the bond is not the statutory bond provided for in section 1159, Rem. Code, as it contains no provision for the payment of laborers or materialmen. Not being a statutory bond, it is clear the obligation of the surety cannot be extended beyond its contract, and no liability could be enforced against the surety below because of the failure of the contractor to pay for labor or material entering into the construction of the building. This much is conceded by appellants. It contends, however, that the action will lie because of the provision of the bond that:

'The surety shall not be liable under this bond to any one except the obligee, but it is agreed that the obligee, in estimating his damages may include the claims of mechanics and materialmen arising out of the performance of the contract and paid by said obligee, only when the same by the statute of the state wherein the contract is to be performed, are valid liens against the property of the obligee.'

This paragraph extends the liability of the surety only to those claims which by statute are made valid liens against the property of the school district, and this contention of appellants must fail because we have no statute making claims of this character liens against the property of school districts. It is the uniform rule that provisions in a bond of like character to the one in suit do not render the surety liable where there is no provision for liens against public buildings. Electric Appliance Co. v. U.S. Fidelity &amp Guaranty Co., 110 Wis. 434, 85 N.W. 648, 53 L. R. A. 609; Smith v. Bowman, 32 Utah, 33, 88 P. 687, 9 L. R. A. (N. S.) 889; Spalding Lumber Co. v. Brown, 171 Ill. 487, 49 N.E. 725; Townsend v. Cleveland Fire Proofing Co., 18 Ind.App. 568, 47 N.E. 707; Montgomery v. Rief, 15 Utah, 495, 50 P. 623; ...