Van Doren Roofing & Cornice Co. v. Guardian Cas. & Guar. Co.

• Decision Date: 22 November 1917
• Docket Number: 14094.
• Citation: 99 Wash. 68,168 P. 1124
• Court: Washington Supreme Court
• Parties: VAN DOREN ROOFING & CORNICE CO. v. GUARDIAN CASUALTY & GUARANTY CO. et al.

168 P. 1124

99 Wash. 68

VAN DOREN ROOFING & CORNICE CO. v. GUARDIAN CASUALTY & GUARANTY CO. et al.

No. 14094.

Supreme Court of Washington

November 22, 1917

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Actions by the Van Doren Roofing & Cornice Company, a corporation and by the Canal Lumber Company against the Manhattan Contracting Company and the Guardian Casualty & Guaranty Company, wherein Dalk & Lindberg and others were made parties defendant or intervened and cross-complained. From judgment for various claimants against the Manhattan Contracting Company and the Guardian Casualty & Guaranty Company, they appeal; the latter alone perfecting its appeal. Reversed as to the judgment in favor of a single claimant; in other respects affirmed.

E. B Herald and Reeves Aylmore, Jr., both of Seattle, for appellant.

Bogle, Graves, Merritt & Bogle, Farrell, Kane & Stratton, Myers & Johnstone, and Thos. T. Littell, all of Seattle, for respondents.

ELLIS C.J.

Defendant Manhattan Contracting Company as contractor erected a transit shed for the Port of Seattle at a contract price of $34,760, of which sum 25 per cent. was to be withheld until all claims for labor and material had been satisfied. To secure payment of such claims two statutory bonds complying with the provisions of Rem. Code, § 1159, were given, one for $30,000 with the Guardian Casualty & Guaranty Company, as surety, the other for $4,760 with Reeves Aylmore, Jr., and A. V. Smith, as sureties. The contract and bonds were executed on December 29, 1915. During the progress of the work a number of materialmen's claims were filed with the Port of Seattle. The validity of some of these being disputed, the Port of Seattle refused to complete payment of the contract price and withheld a balance of $13,853.27, which was more than $5,000 in excess of the 25 per cent. The sum so withheld was finally paid into the registry of the court to await the court's order. Van Doren Roofing & Contracting Company, a material claimant, brought an action in interpleader to determine the respective rights of the various claimants to this fund. The Canal Lumber Company brought a separate action to enforce its claims for materials. These actions were ordered consoldated for the purpose of trial. By stipulation they were actually tried separately, but are treated as consolidated on this appeal. A number of other claimants, including Dalk & Lindberg, Seattle Construction & Dry Dock Company, and American Savings Bank & Trust Company, were made parties defendant or intervened and cross-complained to establish their respective rights to the fund and against the statutory bonds. After trial, judgment was entered in favor of various claimants against the contractor and its surety, the Guardian Casualty & Guaranty Company. Both of these defendants gave notice of appeal, but the latter alone has perfected its appeal and in this court contests only the claims of Dalk & Lindberg, Seattle Construction & Dry Dock Company, Canal Lumber Company, and American Savings' Bank & Trust Company. We shall discuss the errors assigned generally as they apply to the facts connected with the respective claims.

1. Dalk & Lindberg were awarded judgment against Manhattan Contracting Company and Guardian Casualty & Guaranty Company for materials furnished in the sum of $1,062.20 with interest and an attorney's fee of $150. Their notice of claim filed with the Port of Seattle was as follows:

'January 5, 1916.

'Port of Seattle, Port Commission, Gentlemen: You are hereby notified that the Manhattan Contracting Co. still owes us $1,062.20 for materials furnished East Water Building Transit Shed on Wharf No. 2. Wish you would hold out that amount from their contract or make some arrangement to pay our claim.

'Yours truly, [Signed] Dalk & Lindberg.'

Appellants contend that this claim was insufficient, in that it gave no notice of any intention to assert a claim against the statutory bonds, hence did not comply with Rem. Code, § 1161, which prescribes that the notice in such cases shall state that the claimant 'has a claim in the sum of _____ dollars * * * against the bond. * * *'

It is true that this notice is a mere statement or the balance due and a request that the Port of Seattle hold out the amount or make some arrangement to pay it. It contains no statement of an intention to hold the surety on the bond. In Rodgers v. Fidelity & Dept. Co., 89 Wash. 316, 154 P. 444, cited by appellant, touching a similar notice, we said:

'The sureties upon such bonds have a right to know what claims are being made against them, by timely filing of the required notice. It is not enough that the claimant makes some claim against the contractor, his debtor, or against funds which may be due the contractor.'

In Robinson Mfg. Co. v. Bradley, 71 Wash. 611, 129 P. 382, a similar notice was held insufficient. In the case here, however, appellants received actual notice of the filing of the claim and thereafter treated it as sufficient. The Port of Seattle at once sent to the contractor and to appellant a written notice as follows:

'There has been this day filed with the Port of Seattle a claim against you and your bondsman in amount $1,062.20, by Dalk & Lindberg.'

But appellant, relying upon the decision in Robinson Mfg. Co. v. Bradley, supra, asserts that actual notice cannot take the place of the filing of a notice with the municipality specifically asserting a claim against the bond. In the Bradley Case, however, the actual notice went no further than the written notice filed with the library board, which was merely notice that the claim was due and unpaid. In the case here the Port Commission evidently construed the notice filed with it as a claim against the bond, and so interpreted it in its notice to the contractor and bondsmen. We think that the doctrine in the Bradley Case should not be extended, especially where, as in this case, the pleading shows that the surety was not misled but at all times prior to trial treated the notice as a sufficient claim against the bond. The Manhattan Contracting Company and the Guardian Casualty & Guaranty Company, its bondsman, answered the cross-complaint of Dalk & Lindberg, denying generally the paragraph thereof in which was alleged the filing of the claim with the Port of Seattle and denying specifically that $250 was a reasonable attorney's fee as therein alleged; but these answers further amrmatively averred that the contractor nor its bondsman 'has never disputed the claim of said cross-complainant and has never refused to pay the same,' and set up, as an excuse for the failure to pay this claim, the fact that other claimants had filed fraudulent claims, because of which the Port of Seattle was withholding money due on the contract. These answers close as follows:

'A tender is hereby made by this defendant to this cross-complainant out of said money in the registry of the court of the amount of its claim.'

Dalk & Lindberg demurred to this affirmative matter in each answer on the ground that it constituted no defense in law. The demurrers were sustained, but the affirmative matter was not stricken from either of the answers, and, though held on demurrer insufficient in law as a defense, it still stood as an admitted fact. Nowhere in appellant's pleading is the sufficiency of the claim speciflcally assailed. There is a mere denial that the claim was filed. There is no claim, even here, that appellant was misled by the notice given. On the contrary, the admission above quoted shows affirmatively that it was not misled. Notwithstanding this admission, the court permitted full evidence to be taken as to the amount of the claim and as to the character of the claim filed. He concluded, however, that 'so long as the bonding company received any notice and was not misled that is sufficient.' While the court's statement is somewhat broader than is warranted by our decisions, we are satisfied that it is warranted in the light of the evidence coupled with the admission in the pleading. As to the probative effect of such admissions, see City of Arkansas v. Payne, 80 Kan. 353, 102 P. 781, 18 Ann. Cas. 82, and note; Behrens Lumber Co. v. Lager, 26 S.D. 160, 128 N.W. 698, Ann. Cas. 1913A, 1128, and note; O. R. & N. Co. v. Dacres, 1 Wash. 195-201, 23 P. 415. In these cases pleadings were admitted in evidence after they had been superseded by amendment, and such is stated to be the correct rule under overwhelming authority. A fortiori, it would seem that where the pleading was not amended, stricken, nor withdrawn, but still stood as part of the record of the case, as here, the admissions contained therein must be considered as admitted facts in the case. We find no warrant in the record for reversing the judgment in favor of Dalk & Lindberg.

2. The appeal from the judgment in favor of Seattle Construction & Dry Dock Company involves an alleged departure in pleading. The dry dock company was made a party defendant and alleged in its original cross-complaint that:

'It furnished and delivered to the said Manhattan Contracting Company, in pursuance of a contract between them, certain lumber and material * * * for the use and benefit of the contract in said bonds mentioned, yet the said Manhattan Contracting Company has failed and neglected to pay the said sum.'

After the dry dock company had submitted evidence tending to support this allegation, appellant introduced in evidence a written contract between the dry dock company and O. W Crandall, doing business as O. W. Crandall & Co., who in the alleged capacity of a subcontractor bought the material from the dry dock company for the use of the Manhattan Company. Crandall was not a party to the action. He was, however, a...