Smith v. Town of Tukwila

• Citation: 118 Wash. 266,203 P. 369
• Decision Date: 11 January 1922
• Docket Number: 16593.
• Court: United States State Supreme Court of Washington
• Parties: SMITH et al. v. TOWN OF TUKWILA.

203 P. 369

118 Wash. 266

SMITH et al. v. TOWN OF TUKWILA.

No. 16593.

Supreme Court of Washington

January 11, 1922

Department 2.

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by A. Smith and E. J. Fielding, copartners, against the Town of Tukwila, in which defendant filed cross-complaint against plaintiffs and another. From judgment rendered defendant appeals. Reversed, with directions.

Jones &amp Colvin and Riddell & Brackett, all of Seattle, for appellant.

Houser & Davis, of Renton, for respondents.

MACKINTOSH J.

Smith and Fielding, whom we will hereafter call the respondents were the contractors for certain street grading in the town of Tukwila. They furnished a bond, with Lee Monohon, whom we will hereafter call the bondsman, as surety. This action is to recover from the town damages for the alleged breach of contract.

It was provided in the contract that on the 16th of every month the appellant would pay to the respondents, on certificate of the street committee, 80 per cent. of the contract price of the work completed during the preceding month. The breach alleged is that appellant failed to pay the installment due on September 16, 1920, which amounted to $800, 'as shown by the certificate of street committee,' together with certain other sums on account of extra work. It is alleged that on September 16 demand was made on the appellant, which refused to pay the sums demanded; that demand was then made on the 18th of September and again refused, and at that time the respondents declared the contract forfeited. The Citizens' Bank of Renton, being the assignee of certain laborers' claims, recovered a judgment against the appellant and the bondsman, which had been paid by the appellant under a stipulation that such payment shall be without prejudice to the parties to this appeal.

In the appellant's answer it denies the breach of the contract and that the amount had been certified, and alleges that prior to September 16 respondents had quit and abandoned the work, and refused to proceed further with it, and as a cross-complaint asked for judgment against the respondents and their bondsmen, based on the abandonment of the work prior to September 16; the appellant claiming to have been put to the expense of completing the work left unfinished in a sum in excess of the contract price. This cross-complaint was answered by a general denial.

As between the appellant and the bondsman, it is alleged that at the time of signing the bond it was the intention that two bondsmen should be secured, and that the bondsman was told by the respondents that they were not to file the bond until the other surety had signed, and it is therefore claimed that the bond was void.

There are but two questions presented by this appeal: First, which raises a question of fact, is whether the respondents had quit and abandoned the work prior to September 16, when a payment would be due them. This question first makes necessary an examination of the testimony in the case, and to our minds it overwhelmingly preponderates against the findings of the trial court that there had not been such abandonment. A number of citizens, whose credibility is unquestionable, testified that the contractors, prior to September 16, realized that they were engaged in a very unprofitable undertaking, and had decided to and in fact had abandoned further work on the contract. It is unnecessary to detail all of the testimony which forces this conclusion upon us. It is only denied by the very uncertain testimony of one of the respondents, which denial is attempted to be corroborated by the equally uncertain evidence of two or three employees. Altogether, it is far from satisfactory, and cannot have the effect of overcoming the reasonable and positive testimony to the contrary. The respondents, having repudiated their contract, had created an anticipatory breach of it, which furnished an excuse for the other party not performing its part. Victor Safe & Lock Co. v. o'Neil, 48 Wash. 176, 93 P. 214; Calhoun, Denny & Ewing v. Pederson, 85 Wash. 633, 149 P. 25.

Furthermore upon this first point, the record establishes that respondents have failed to produce or request a certificate from the street committee, which was made by the contract a prerequisite to recovery of the installment due on the 16th of every month, and without such certificate the respondents could not recover such installments, unless the certificates had been unfairly withheld. Craig v. Geddis, 4 Wash. 390, 30 P. 396; De Mattos v. Jordan, 15 Wash. 378, 46 P. 402; Colby v. Interlaken Land Co., 88 Wash. 196, 152 P. 994; School District No. 75 v. Qualls, 95 Wash. 250, 163 P. 761. Although the respondents alleged that such a certificate was in existence, this allegation was denied by the appellant, and no proof was produced to show the certificate had ever been issued or demanded. The necessity of producing such certificate is sought to be avoided by the respondents on the ground that one Kline, who was a member of the town council, and also the city engineer and a member of the street committee, had, on September 11, reported to the town council the...