Sears v. Williams

• Decision Date: 19 July 1894
• Parties: SEARS v. WILLIAMS ET AL. [1]
• Court: Washington Supreme Court

37 P. 665

9 Wash. 428

SEARS v. WILLIAMS ET AL. ^[1]

Supreme Court of Washington

July 19, 1894

Appeal from superior court, Skagit county; Henry McBride, Judge.

Action by F. K. Sears, doing business as Sears & Co., against Billy Williams, William S. Caruthers, and others, to recover on a bond given to the city of Anacortes. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

Dunbar C.J., dissenting.

For dissenting opinion, see 39 P. 280.

Wells &amp Joiner, D. M. Woodbury, and Million & Houser, for appellants.

Allen &amp Powell, for respondent.

HOYT, J.

Appellants and their joint defendants were sureties in a bond executed by Billy Williams, who had a contract with the city of Anacortes to grub and grade certain streets in said city. This bond was taken in pursuance of the provisions of section 2415, Gen. St., for the purpose of relieving said city from liability under the provisions of section 2416. The respondent brought suit against the sureties named in said bond to recover for materials furnished to said contractor in the carrying out of his contract. Trial was had, and a judgment rendered in his favor, from which this appeal is prosecuted.

That the provisions of section 2415 of the General Statutes are not applicable to street grading contracts was directly ruled by this court in the case of Clough v. City of Spokane, 7 Wash. 279, 34 P. 934. Hence, it was not necessary for the city to take the bond for the purpose of relieving itself of the liability imposed by the statute. It is claimed, however, that it was competent for the city to require such a bond as a condition precedent to awarding the contract, and that the bond, having been voluntarily entered into, and not being for an illegal purpose, should be enforced as a contract between the parties. This contention may well be conceded, and yet it will not follow that the respondent had any right to maintain an action thereon. If the bond was not one contemplated by the statute, it could derive no vitality therefrom. All the force it could have would be that of a contract voluntarily entered into by the parties. This being so, it must follow that while the bond may have been a good one as between the city and the obligors, by reason of its having been voluntarily entered into, it could not be enforced in favor of the respondent, who was in no sense a party thereto. So far as it was a contract between the city and the makers, it might be capable of enforcement, notwithstanding...