U.S. v. Henningsen

• Decision Date: 09 September 1905
• Citation: 82 P. 171,40 Wash. 87
• Parties: UNITED STATES, to Use of STANDARD FURNITURE CO., v. HENNINGSEN et al.
• Court: Washington Supreme Court

82 P. 171

40 Wash. 87

UNITED STATES, to Use of STANDARD FURNITURE CO., v. HENNINGSEN et al.

Supreme Court of Washington

September 9, 1905

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by the United States, for the use and benefit of the Standard Furniture Company, against R. M. Henningsen and others. From a judgment for plaintiff, defendant the AEtna Indemnity Company appeals. Affirmed.

Graves, Palmer, Brown, & Murphy, for appellant.

Richard Saxe Jones, for respondent.

DROW J.

On April 2, 1902, R. M. Henningsen and Thorvald Olsen copartners under the firm name and style of R M. Henningsen & Co., entered into a written contract with W C. Langfitt, Captain Corps of Engineers, United States Army Engineer of the Thirteenth Lighthouse District, for and on behalf of the United States, for the construction, equipment and furnishing of a certain lighthouse and two keepers' residences for the Mary Island lighthouse station of Alaska. The written specifications attached to said contract and made a part thereof expressly required that said contractors should furnished certain furniture for said keepers' residences. Under the provisions of Act Cong. Aug. 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1901, p. 2523.], the United States government required and the said contractors furnished, a penal bond in the sum of $20,000, executed by appellant, the AEtna Indemnity Company, as surety, conditioned that said Henningsen & Co. should fully perform said contract and promptly make payments to all persons supplying them with labor and materials in the prosecution of the work therein provided for. Said Henningsen & Co., in the performance of said contract, purchased from respondent, the Standard Furniture Company, certain furniture called for in said stipulations, to the total value of $693, on which they made a partial payment of $400. No further payment being made, this action against said Henningsen & Co. and appellant, the AEtna Indemnity Company, was brought on said bond, to recover $293 remaining due. Appellant, the AEtna Indemnity Company, in its answer pleaded the following affirmative defenses: '(1) For a first further and affirmative defense this defendant alleges that the goods, wares, and merchandise alleged to have been furnished by the plaintiff were not such goods and merchandise as went into the construction of the buildings, and were not labor and material, within the meaning of the statute, as would entitled this action to be brought in the name of the United States. (2) For a second anf further affirmative defense this defendant alleges that the goods, wares, and merchandise alleged to have been furnished to the defendant R. M. Henningsen & Co. were furnished on or about the 17th day of April, 1903, and that the time for payment thereof by the defendant R. M. Henningsen & Co. was extended without the knowledge or consent of this surety, and to its detriment.' To these defenses respondent interposed separate demurrers, which the court overruled as to the first, but sustained as to the second. Respondent by its reply denied the allegations of said first affirmative defense. Upon trial, findings of fact and conclusions of law were made, and judgment was entered thereon in favor of respondent. From said judgment this appeal has been taken.

Appellant's first contention is that the materials furnished, being personal property and not having entered into the permanent structures, were not such materials as would give plaintiff a right of action in the name of the United States under said act of Congress on the bond in question, and that the trial court therefore erred in refusing to grant appellant's motion to dismiss, made at the opening of the case, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and also erred in refusing a nonsuit. Appellant, in support of the proposition, urges that the object of Act Aug. 13, 1894, c. 280, 28 Stat. 278, was to give the same relief, by a proceeding upon the bond of a public contractor, that could be had by foreclosure of a mechanic's or materialman's lien on a building erected by a private owner, claiming such purpose to have been the evident intent of congress, and that said statute should receive such construction at the hands of the court. Appellant has cited numerous authorities for the purpose of sustaining its contention that this statute was intended to afford relief to such parties as would ordinarily be entitled to a mechanic's or materialman's lien under statutes of the various states, were the buildings private, instead of public. There is no question but that said statute affords such relief to subcontractors, laborers, and materialmen; but a remedy for other parties dealing with the contractor is also afforded. The statute in question reads as follows: 'That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work or for repairs upon any public building or public work, shall be required before commencing such work to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the Department under the direction of which said work is being, or...