State Bank of Seattle v. Ruthe

• Decision Date: 12 April 1916
• Docket Number: 12898.
• Citation: 90 Wash. 636,156 P. 540
• Parties: STATE BANK OF SEATTLE v. RUTHE et al.
• Court: Washington Supreme Court

156 P. 540

90 Wash. 636

STATE BANK OF SEATTLE v. RUTHE et al.

No. 12898.

Supreme Court of Washington

April 12, 1916

Department 1. Appeal from Superior Court, King County; John E Humphries, Judge.

Action by the State Bank of Seattle against John Ruthe and another. From a judgment for plaintiff, defendants appeal. Affirmed as to named defendant, and reversed as to the other defendant.

McClure & McClure and Tucker & Hyland, all of Seattle, for appellants.

Corwin S. Shank and H. C. Belt, both of Seattle, for respondent.

FULLERTON J.

On August 1, 1913, the appellant John Ruthe entered into a contract with the city of Duvall, a municipal corporation, to improve certain streets of that city, giving a bond, with the appellant United States Fidelity & Guaranty Company as surety, conditioned, among other things, to pay all persons who should supply the contractor with provisions and supplies necessary to carry on the work required by the contract. During the progress of the work, the contractor used certain teams and grading appliances and fixtures, furnished by the respondent, State Bank of Seattle. The rental value of these he did not pay, and this action was instituted by the bank against him and his surety to recover therefor. From a judgment entered in favor of the bank, this appeal is prosecuted.

There was evidence introduced tending to show that the bank had procured the teams and outfit from Kalberg, and had leased them to the Union Contract Company, a corporation formed by Kalberg and contractor Ruthe, for a period which would cover the period of this contract, and, based thereon and on certain other evidence in the record, the appellants make the contention that the hiring of this property by Ruthe was from the corporation named and not the bank, and that the bank has thus no right of recovery. The bank offered evidence tending to show that this lease had been abrogated by the parties and a new contract entered into with Ruthe for this particular contract. The court found in favor of this version of the evidence, and, without reviewing it in detail, we think it in accord with the fact.

On the amount of the recovery, the court found that the teams had been employed by Ruthe on the work for a period equivalent to 965 days for one team, that their rental value was $2.50 per day, and that the rental value of the grading outfit for the same period of time was $350, and allowed a recovery for the aggregate of these sums less $1,673, which it found to be the reasonable cost of feeding and caring for the teams during the period, the amount of the judgment being $2,054.90.

The appellants contend that the amount of the recovery is too large. From the record we have not been able to discover on what basis the court computed his estimates. The number of days the teams were in Ruthe's possession was shown, and a detailed account of the number of days they were actually employed on the work was kept until August 18, 1913. But whether we allow for the entire period, or whether we take the exact number of days for the time the record was kept and add to it the remaining period, assuming that the teams worked every day, neither calculation gives the number of days for which the court allowed a recovery. The first method, if our...