Sears v. Williams

• Decision Date: 10 October 1894
• Parties: SEARS v. WILLIAMS ET AL.
• Court: Washington Supreme Court

38 P. 135

9 Wash. 428

SEARS v. WILLIAMS ET AL.

Supreme Court of Washington

October 10, 1894

On rehearing. Denied.

For former opinion, see 37 P. 665.

HOYT, J.

In the petition for rehearing filed by respondent, our attention is called to the fact that there was no demurrer to the complaint filed in the court below, and that for that reason our direction as to the disposition of the cause was incorrect. That the complaint did not state facts sufficient to constitute a cause of action was urged as one of the grounds why the judgment should not be allowed to stand, and under our statute, we were called upon to decide that question, even although it had not been raised in the court below. The object of the direction was to enable the respondent to file an amended complaint. It would have been better to have directed simply that the cause be remanded for further proceedings in accordance with the opinion, and to that extent the former opinion will be modified.

Respondent in his petition, again urges with much force that the appellants were estopped by the recitals in the bond from the defense which they sought to make. We have carefully examined the question, and, while we fully agree with the argument to the effect that the principal and sureties were bound by the recitals in the bond, we are unable to hold that such recitals can have force in favor of one who at the time of the execution of the bond was not a party thereto, or in any manner interested in the subject-matter thereof. The fact that he afterwards became interested in the subject-matter of the bond would not, under the circumstances of this case, entitle him to the benefits of the recitals therein.

In addition to the authorities cited upon the argument, some additional ones were called to our attention, and are cited in the petition for rehearing, and confidently relied upon for the purpose of establishing the contention of respondent that the bond could be enforced by one who had furnished material, although he was in no manner a party to or interested in the subject-matter of the bond at the time of its execution. Two of these cases were decided by the supreme court of Nebraska,-one of them being Sample v. Hale (Neb.) reported in 51 N. W., at page 837; and the other, Lyman v. City of Lincoln (Neb.) 57 N.W. 531,-and they clearly sustain the contention of respondent. But we are unable to give our assent to the doctrine therein...