Uden v. Schaefer

• Decision Date: 22 March 1920
• Docket Number: 15523.
• Citation: 188 P. 395,110 Wash. 391
• Court: Washington Supreme Court
• Parties: UDEN v. SCHAEFER et al.

188 P. 395

110 Wash. 391

UDEN v. SCHAEFER et al.

No. 15523.

Supreme Court of Washington

March 22, 1920

Department 2.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by E. E. Uden against A. Schaefer and the Maryland Casualty Company. Judgment for plaintiff, and defendant Casualty Company appeals. Affirmed.

Roberts & Skeel, of Seattle, for appellant.

Walter S. Fulton, of Seattle, for respondent.

FULLERTON J.

On March 4, 1918, the defendant Schaefer and the respondent Uden, entered into a written contract whereby the defendant agreed to furnish all the necessary labor and material and install the plumbing and heating system in an apartment building which the respondent was then constructing. The contract price was $17,000, and was payable in monthly installments of 85 per centum of the value of the labor and material in place at the end of each monthly period. The contract provided that the defendant should furnish an approved surety bond for the amount of the contract price 'otherwise the contract shall be null and void.' The defendant, in compliance with the latter clause of the agreement, furnished a bond with the appellant Maryland Casualty Company as surety in the penal sum of $3,000, which the respondent accepted. The bond so furnished following the usual obligatory clause, contained, among others, the following exceptions:

'Third. That the surety shall not be liable for any damages resulting from so-called strikes or labor difficulties, or from mobs, riots, fire, the elements earthquake, cyclone, tornado, lightning, or any act of God, or for repair or reconstruction of any work or materials damaged or destroyed by any such causes; nor for the nonperformance of any guaranties of the efficiency or wearing qualities of any work done or materials furnished or the maintenanece thereof or repairs thereto; nor for patent infringement; nor for the furnishing of any bond or obligation other than this instrument; nor for damages caused by delay in finishing such contract in excess of 10 per centum of the penalty of this instrument; nor for payments made, or for which the obligee shall become liable to pay on account of death or personal injuries suffered by any person or persons.'

The defendant began the performance of the work and pursued it for about two weeks, during which time he amassed some material and did some excavating. He then abandoned the work, and the respondent was compelled to relet it. This he did by calling for new bids. The best bid obtained for the uncompleted work was $19,122, and the work was let for that sum.

In this action the respondent sues both the Maryland Casualty Company and the defendant Schaefer in damages as for a breach of the contract. The sum demanded totals $3,198.75, made up of the difference between the original contract price and the price for which the work was relet, together with the sum of $616, paid to carpenters for extra work alleged to have been made necessary by the defendant on account of work performed by him while in the prosecution of the original contract. The action was tried by the court, sitting without a jury, and resulted in a judgment against both the defendant and the Maryland Casualty Company in the sum of $2,565.15, and an additional judgment against Schaefer in the sum of $15. The Maryland Casualty Company alone appeals.

The appellant defended the action on the ground that the defendant's failure to perform the contract was because of a strike on the part of his workmen, or at least because of labor difficulties, and that it is thus not liable...