Trinity Parish of Seattle v. Aetna Indem. Co.

• Decision Date: 17 March 1905
• Citation: 37 Wash. 515,79 P. 1097
• Parties: TRINITY PARISH OF SEATTLE v. AETNA INDEMNITY CO. et al.
• Court: Washington Supreme Court

79 P. 1097

37 Wash. 515

TRINITY PARISH OF SEATTLE v. AETNA INDEMNITY CO. et al.

Supreme Court of Washington

March 17, 1905

Appeal from Superior Court, King County; Frank H. Rudkin, Judge.

Action by the Trinity Parish of Seattle, a corporation, against the AEtna Indemnity Company and another. From a judgment for plaintiff, defendant indemnity company appeals. Affirmed.

Root Palmer & Brown, for appellant.

Walter S. Fulton and Vince H. Faben, for respondent.

MOUNT C.J.

On the 18th day of April, 1902, the respondent entered into a contract with N.H. Beer, by the terms of which contract said Beer was to furnish all the materials and erect a church building in the city of Seattle, in accordance with certain drawings and specifications, at an agreed price of $25,800. The contract was in the usual form of builders' contracts as prepared by architects, and provided, among other things, that changes and alterations might be made in the work as it progressed; that the building should be completed on or before September 1, 1902, and for liquidated damages at the rate of $5 per day for each day that the work should remain uncompleted after that date; and that the owner could at any time, on default of the contractor, on two days' notice, assume the work and discharge the contractor. It also provided that, for each $2,000 worth of work done, the contractor should receive 75 per cent. of that amount, and, on completion and acceptance of the work, he should receive 75 per cent. of the balance then due, and final payment within 40 days after the contract was fulfilled. It also provided that the contractor should furnish a bond in the sum of $7,500 for the faithful performance of the contract. This bond was furnished by the AEtna Indemnity Company, the appellant. This bond, after reciting the terms of the contract and specifications which were attached thereto, provided, among other things, as follows: 'The condition of the foregoing obligation is such that, if the said principal shall well, truly, and faithfully comply with all the terms, covenants, and conditions of said contract on his part of be kept and performed, according to its tenor, then this application shall be void; otherwise to remain in full force and effect Provided, that the said surety shall be notified in writing of any act on the part of said principal, or his agent or employees, which may involve a loss for which the said surety is responsible hereunder immediately after the occurrence of such act shall have come to the knowledge of the fully authorized representative, * * * of the Trinity Parish, * * * Provided, that if the said principal shall fail to comply with all the terms of said contract to such an extent that the same shall be forfeited, then the said surety shall have the right and privilege to assume said contract and to sub-let or complete the same, * * * Provided further, that in the event of any breach of the conditions of this bond said surety shall be subrogated to all the rights and properties of said principal arising out of said contract, and all payments deferred, and any and all moneys and property at that time due said principal under and by virtue of said contract shall be credited upon claim which said Trinity Parish of Seattle will make upon said surety, * * * Provided further, that any suits at law or proceedings in equity brought against this bond to recover any claim hereunder must be instituted within six months after the first breach of said contract.' After the execution of the contract and bond, the contractor proceeded with the work. The building was not completed at the time designated because, during the progress of the work, certain extras were furnished, which had the effect to extend the time for the completion of the building. On January 3, 1903, respondent gave the appellant written notice of its intention to make the last partial payment under the contract between respondent and said contractor, and the payment was subsequently made. The work was substantially completed on or about January 20, 1903, when the contractor quit the work and left the state. The respondent thereupon took possession of the building and corrected some defective work at a cost of about $150. At the time said Beer quit the work, he left a number of bills for materials unpaid. On January 30, 1903 soon after respondent learned of these unpaid bills, notice was given to appellant that the contractor had failed to pay for said materials and labor. At the time this action was begun, liens had been filed on the building for claims amounting to some $1,500, but liens had not been filed for other claims amounting to about $4,000. The action was brought in the nature of specific performance, and all the lien and other claimants were made parties, and required to set up and establish their claims. Judgment was entered substantially as prayed for against the...