State v. Liebes

• Decision Date: 06 July 1898
• Citation: 54 P. 26,19 Wash. 589
• Parties: STATE EX REL. BARTELT v. LIEBES, COMPTROLLER, ET AL. (MEIKLE ET AL., INTERVENERS.
• Court: Washington Supreme Court

54 P. 26

19 Wash. 589

STATE EX REL. BARTELT v. LIEBES, COMPTROLLER, ET AL. (MEIKLE ET AL., INTERVENERS.

Supreme Court of Washington

July 6, 1898

Appeal from superior court, Spokane county; William E. Richardson Judge.

Action by the state, on the relation of John Bartelt, against George A. Liebes, comptroller, and E. D. Olmsted, mayor, of the city of Spokane, to compel the issue and delivery of certain bonds to the relator; William Meikle and others intervening. From a judgment in favor of respondents, relator appealed; and from a dismissal of their complaints, interveners appealed. Reversed.

Crow &amp Williams and S. R. Stern, for relator.

Danson & Huneke, R. L. Edmiston, E. W. Hand, and W. A. Lewis, for interveners.

A. G Avery, for respondents.

GORDON J.

On the 20th of March, 1897, the city of Spokane entered into a written contract with George J. Loy for the construction of a certain sewer, which had theretofore been authorized by ordinance; the price to be paid said contractor therefor being $3,972, in special sewer improvement bonds, which were to be issued and delivered when the contract was completed. The contract provided that the work should be performed and the materials furnished under the provision, direction, and control, and to the complete satisfaction, of the city engineer, and to be approved by the board of public works, and also contained the following provision: "It is further mutually agreed and understood that no payment shall be made by the city to the contractor, George J. Loy, until said sewer shall have been completed, and all labor paid thereon; *** and should any claims be filed with the comptroller by the employés of the contractor, or by the material men, before the final settlement has been had, the same shall be adjusted and satisfied before any bonds herein provided for shall be issued to said contractor." Said contract also contained a provision making it "subject to all the conditions and requirements of Ordinance A203, being an ordinance relating to contracts for public works, passed May 2nd, 1892, and as amended." Section 16 of Ordinance A203, referred to in this contract, provides: "Whenever the board of public works shall notify the contractor by notice personally served, or by leaving a copy thereof at the contractor's last place of abode, that no further vouchers or estimates will be issued or payments made on the contract until the workmen and employés have been paid, and the contractor shall neglect or refuse for the space of ten days after such notice shall have been served to pay such workmen or employés, it shall and may be lawful for the city to apply any money due, or that may become due, under the contract, to the payment of said workmen and employés, without other or further notice to said contractor. ***" The contractor completed the work, and the sewer was accepted and approved by the city. The relator, Bartelt, is the assignee of the contractor of the first $2,000 of said bonds to be issued under the city's contract to Loy; and in the instrument of assignment it was agreed that the bonds might be issued to the relator, instead of to the contractor. The respondent Liebes is comptroller, and respondent Olmsted mayor, of the city. During the construction of the work the contractor incurred labor debts to the amount of $3,000, and an indebtedness for materials furnished and used in the construction of the sewer to the amount of $800, none of which indebtedness, either for labor or material, was paid. Written claims therefor were filed prior to August 1, 1897, in the office of the city comptroller. Authority to issue the bonds was conferred on November 15, 1897, by ordinance, and thereafter the relator duly demanded of the respondents that they issue and deliver to him $2,000 of said bonds. This demand being refused, he instituted a proceeding in the superior court for the purpose of compelling the officers of the city to issue and deliver the same. In response to the alternative writ, defendants appeared, and set up as a reason why they refused to issue the bonds the provisions in the contract between the city and Loy hereinbefore referred to; also, the facts in regard to Loy's incurring the indebtedness for which claims had been filed with the city's comptroller. After the alternative writ was issued, and before judgment, all of the appellants except relator obtained permission of the lower court to intervene. Their complaints set up that the several interveners had performed work or furnished material for the contractor, Loy, in the construction of the sewer, for which labor and materials they had not been paid, and that in conformity with the provisions of Ordinance A203, already referred to, they had filed their claims with the comptroller. They also set up that the contractor was insolvent, and asked that the city should be required to deliver to them, out of the bonds which the city had contracted to deliver to Loy, an amount sufficient to pay their respective claims. After motions to strike portions of these complaints in intervention had been denied, and demurrers thereto overruled, the cause was set down for trial; and, at the trial, objections by the respondent city and the relator to the introduction of any evidence on behalf of the interveners, upon the ground that their respective complaints failed to state facts sufficient to entitle them to intervene, or to any relief, were sustained, and they were dismissed from the proceeding. The trial between the relator and the city resulted in a judgment in the latter's favor; and it was adjudged that the relator was not entitled to any relief, and his proceeding was dismissed. Both the relator and the interveners have appealed. It will thus be seen that the contest is a three-cornered one, and that the appeals of the relator and the interveners are hostile to each other.

It is the contention of the relator that the provision in the contract between Loy and the city, providing that the bonds should not be issued until the contractor had paid for all labor and material, was ultra vires, and that no privity of contract existed between the interveners and the city. His position is that there was not at the time of the execution of the contract any provision of statute, or of the charter of the city, which conferred upon the board of public works or the city, authority to insert in the contract the provision in reference to withholding payment from the contractor until the laborers and material men had been paid, and that for the same reason the provisions...