Standard Boiler Works v. National Sur. Co.

• Decision Date: 11 November 1912
• Parties: STANDARD BOILER WORKS v. NATIONAL SURETY CO.
• Court: Washington Supreme Court

127 P. 573

71 Wash. 28

STANDARD BOILER WORKS v. NATIONAL SURETY CO.

Supreme Court of Washington

November 11, 1912

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by the Standard Boiler Works against the National Surety Company and others. From an adverse judgment, plaintiff appeals. Affirmed.

Skeel &amp Whitney, of Seattle, for appellant.

John W Roberts and George L. Spirk, both of Seattle, for respondents.

CHADWICK J.

The defendant Steenstrup was engaged in the performance of a contract for the improvement of Western avenue and Pike place in the city of Seattle. Steenstrup employed plaintiff to make certain necessary repairs on a steam shovel which had been rented and was being used by him. The repairs amounted to the sum of $324.15. After the repairs had been made, the shovel was used for a day or two upon the works. Steenstrup afterwards became a bankrupt, and plaintiff brought this action upon the bond given by the contractor under sections 1159 and 1161, Rem. & Bal. Code. The court held 'that said repairs made by plaintiff upon said steam shovel did not in any manner become a part of the said improvement of Western avenue and Pike place, nor was the same labor or material used in said improvement.' From a judgment in favor of defendant, plaintiff has appealed, and relies upon the case of National Surety Co. v. Bratnober Lbr. Co. et al., 67 Wash. 601, 122 P. 337, saying: 'A most liberal construction was [there] allowed. Rent for teams, feed and hay for the same, coal and fuel for the same indentical steam shovel were allowed and declared to be contemplated by the statute. Surely repairs, labor and materials on the same steam shovel would be just as lienable. The improvement could not be efficiently prosecuted without this steam shovel, and the whole work would have been delayed had not the repairs been made.' It is true that we so held, but it does not follow that repairs put upon the machine or horses sold to the contractor to be used in the prosecution of the work are recoverable items under the statutory bond. The public is bound upon the theory that the thing furnished or supplied has gone into and become a part of the work, or to state the proposition in another way, if the public pays for an item, it is because title has passed to it. To the transference of title the incidental cost of transfer, whether in labor or material, may lawfully be added. The statute means to include 'anything that is furnished for, and used directly in the carrying on of the work, and is entirely consumed thereby. Such things do not enter into and become a physical part of the finished structure, as materials do, as that word is generally construed; but they do become as much as part of the structure as the labor which is performed upon it. Nat. Surety Co. v. Bratnober, etc., Co., supra. This is the logic of many of our decisions, more especially, Gilbert Hunt Co. v. Parry, 59 Wash. 646, 110 P. 541, Ann. Cas. 1912B, 225; Hall v. Cowen, 51 Wash. 295, 98 P. 670; Tsutakawa v. Kumamoto, 53 Wash. 231, 101 P. 869, 102 P. 766.

In none of our own cases, so far as we have been able to discover have we discussed the item of repairs, but we find the general rule to be that no recovery can be had for machinery used in the prosecution of the work. 'The contract presupposes that the contractor has and will furnish upon his own account the necessary tools, implements, and appliances with which to perform the work.' Kansas City v. Youmans, 213 Mo. 151, 112 S.W. 225. The logical consequence of this holding is that repairs put upon such machinery do not come within the protection of the law. Empire State...