State ex rel. Macri v. City of Bremerton
| Decision Date | 21 March 1941 |
| Docket Number | 28218. |
| Citation | 111 P.2d 612,8 Wn.2d 93 |
| Parties | STATE ex rel. MACRI v. CITY OF BREMERTON et al. |
| Court | Washington Supreme Court |
Department 2.
Action in mandamus by the State of Washington, on the relation of Sam Macri, as sole trader doing business under the firm name of Macri and Company, against the City of Bremerton and others. From that portion of the judgment which awarded to relator only the statutory attorney's fee of $10, relator appeals.
Affirmed.
Appeal from Superior Court, Kitsap County; Roger J. Meakim, judge.
Tom W Holman and Harold A. Pebbles, both of Seattle, for appellant.
Marion Garland and James W. Bryan, Jr., both of Bremerton, for respondents.
In August 1937, Sam Macri and the city of Bremerton entered into a written contract for the construction, by Macri, of a city sewer system. Under one of the provisions of that contract Macri was obligated to indemnify and hold harmless the city of Bremerton from any and all claims for damages arising from or through the operation of contractor Macri, which provision included all claims for injuries or damages to the property or right of any person. The city was authorized, in the event of the failure of contractor Macri to obtain a valid release of any and all such claims prior to the final acceptance of the work, to settle or compromise such claims and charge the cost thereof to the contractor as so paid on the contract.
About four months prior to the completion of the work under the contract, Walter R. Warren filed with the city of Bremerton a claim in December, 1937, for damages in the amount of $4,500 for alleged removal of lateral support to his land through the contractor's operations. Without notification to the contractor of the claim the city rejected the claim. Two months later Walter R. Warren instituted an action upon the claim naming as defendants the city of Bremerton, contractor Macri and the contractor's surety. Although regularly served with process the city did not appear; however, as disclosed by the statement of the trial court as dictated into the record 'the city attorney knew the suit was brought and wilfully refrained from defending.' Macri and his surety duly appeared by motion and demurrer. Without joining final issue with the contractor and his surety Warren obtained the entry of default against the city. Thereafter the court made findings as to the extent of damage to Warren's land and entered judgment against the city, solely, in the amount of twelve hundred dollars, which judgment was taken without knowledge of Macri and his surety. Warren satisfied the judgment of record pursuant to the procedure prescribed by Rem.Rev.Stat. § 953 and demanded a warrant from the city in payment of that judgment. The then city attorney of Bremerton, who is responsible for the city's wilful default, allowed entry and satisfaction of record of the default judgment, rejected certified copy of such judgment satisfaction as a claim and appeared in, but did not resist, entry of decree in mandamus proceedings instituted June 22, 1938, by Warren to compel the city of Bremerton to issue to him a warrant in payment of his judgment. Macri and his surety had no notice of that proceeding. The city then notified Macri and his surety of the mandate judgment and demanded that they pay same. Macri and his surety, after serving notice upon Warren procured two orders in the action instituted by Warren upon his claim dismissing the action against them. The city was notified through its then city attorney that Macri and his surety would not pay the mandate judgment and that they would hold the city responsible for any payment thereof from Macri's retained percentage of the contract price for the sewer construction. Despite that notice the city paid Warren out of that retained percentage the amount of the mandate judgment.
August 29, 1938, Macri instituted an action in mandamus to compel the city and its officers to accept full performance of the work under the contract, to certify such acceptance, and to issue to contractor Macri a city warrant in the amount of $6,064.67 in full payment of the work. The city pleaded as a partial defense its payment of the judgment in the Warren damage action. Trial to the court resulted in entry of a decree awarding Macri the total amount of the retained percentage in the amount of $6,058.10 'less any claims filed as provided for by law.' The city did not appeal from that decree nor did it formally accept Macri's work or pay to him the amount of the retained percentage as fixed by the decree. It submitted, instead, to Macri, and insisted upon his acceptance of, two claims designated 'purchase requisitions' the effect of which was to deduct from the retained percentage amounts representing the Warren judgment and also two other damage claims which were subsequently disallowed.
Macri thereupon instituted contempt proceeding to compel obedience by the city and its officers to the decree and peremptory writ of mandate. The defense pleaded in the contempt proceeding was payment by the city of the judgment in the Warren action. The trial court held that the Warren judgment was a proper deductible item, on the theory that it had been concluded by the Warren litigation. Macri appealed from that judgment.
We held ( State ex rel. Macri v. Bremerton, 2 Wash.2d 243, 97 P.2d 1066) that the basic controversy between the parties throughout the various stages of the action had always been whether the claim originally asserted by Warren was one for which Macri was legally liable and, if so, to what extent; that Macri's covenant to hold harmless the city against claims for damages had reference to damages arising from legal liability, and in so far as the city acted as a mere volunteer in paying Warren, the city could not look to Macri for indemnity. We concluded that the principal question that should have been presented and decided in the trial court was whether, or to what extent, there were any valid claims which should be deducted from the amount of the retained percentage. The judgment was reversed and the cause remanded with direction to the trial court to proceed in accordance with the foregoing views.
Pursuant to the foregoing, a further hearing was had which resulted in findings that Macri was entitled to judgment against the city of Bremerton in the amount of $6,058.10, with costs which included the statutory attorney's fee of ten dollars. The trial court specifically found that Macri had been compelled to secure, and there had been furnished him, very considerable legal services in this litigation, and that such services were to an unusual extent required by the conduct of the city officers; and that the reasonable value of such legal services as sustained by the uncontroverted evidence is fifteen per cent of the total amount to be recovered by Macri in this litigation. However the trial court was convinced that an attorney's fee in excess of the amount fixed by statute was not recoverable. Judgment was entered in consonance with the foregoing. The city's tender of cash payment of the judgment including the statutory attorney's fee of ten dollars was accepted with the exception of the item of ten dollars. The appeal is prosecuted by Macri from that portion of the judgment which awards to him only the statutory attorney's fee of ten dollars.
The sole question presented by this appeal is whether, by reason of the fact that the city was adjudged to have wrongfully paid from and withheld the balance of appellant contractor's retained percentage earned under the public works contract in question, the contractor was entitled to recovery against the city, as costs or damages, an attorney's fee in excess of the amount fixed by statute, Rem.Rev.Stat. § 481, in action against the city to collect the retained percentage.
Counsel for appellant contend that retained percentage funds, held by virtue of the public improvements contract statute, Rem.Rev.Stat. § 10320, are trust funds and cites, as sustaining authority for the position that the trial court should have allowed a reasonable attorney's fee to appellant contractor against respondent city, Longview School District No. 112 v. Stubbs Electric Co., 160 Wash. 465, 295 P. 186, although counsel are mindful that that case 'involved an indemnitor's rights under subrogation of the surety's claim to protection because of the school district's premature payment to its contractor Hammond from the retained percentage fund.'
In Longview School Dist. No. 112 v. Stubbs Electric Company, 160 Wash. 465, 295 P. 186, the school district appealed from a judgment in favor of Stubbs Electric Company. The judgment was entered upon the pleadings of the parties and an agreed statement of facts. The retained percentage of the contract price amounted to $495 for a period of thirty days after the completion of the contract and acceptance by the architect. The school district breached the contract and bond by paying to Hammond the full contract price Before the expiration of the thirty-day period. Within the thirty-day period the time recording company presented to the surety an unpaid claim in the amount of $967 for materials furnished Hammond in the work. The surety, in turn, referred the claim to the Stubbs Electric Company, the indemnitor. The surety then demanded of the school district payment of $495 to apply on the claim of the time recording company. The school district refused to pay. The time recording company recovered judgment against the surety for $967 and interest, including attorneys' fees of $120 and costs in the amount of $33.20. In accordance with the indemnity agreement Stubbs Electric Company satisfied that judgment in addition to which the electric company paid...
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