Western Const. Co., Inc. v. Austin, 27828.
Decision Date | 01 March 1940 |
Docket Number | 27828. |
Citation | 99 P.2d 932,3 Wn.2d 58 |
Parties | WESTERN CONST. CO., Inc., v. AUSTIN et al. |
Court | Washington Supreme Court |
Department 2.
Action by the Western Construction Company, Inc., against Robert L Austin and another, copartners doing business as Austin Plumbing & Heating Company, Abe Sherman, doing business as Sherman Plumbing p Heating Company, and another, to recover an amount due plaintiff from defendant partners, whose payment thereof defendant Sherman guaranteed. From a judgment for plaintiff against defendant Sherman, he appeals.
Reversed.
Appeal from Superior Court, King County; Chester A. Batchelor Judge.
Charles F. Riddell and William C. Taylor, both of Seattle, for appellant.
Ralph B. Potts, of Seattle, for respondents.
Plaintiff thereafter paid all monies which became due to Austin to the National Bank of Commerce for the use of Sherman until there was a balance due under Austin's contract of only $1,159.50. At the time this balance was due, it developed that Austin owed some $2,600 on account of heating and plumbing supplies that had gone into the job.
Upon Sherman's refusal to pay Austin's bills, plaintiff brought this action and recovered a judgment against him in the sum of $1,495.92. Sherman appeals.
Appellant urges that respondent's action must fail because no substantial damages were proved. Respondent's case was presented on the theory that it was only necessary to prove that Austin had incurred obligations for materials going into the job, the reasonable value thereof and failure to pay therefor. There was no proof whatsoever that respondent had incurred any individual liability to Austin's creditors. Nor was there proof of any steps taken by Austin's creditors to establish liability against respondent's bond furnished pursuant to Title 40, section 270, U.S.C.A. In other words, respondent failed to prove that either it or its bond was in any legal sense liable for Austin's obligations.
As we view the record, the recovery had by respondent was in the nature of a decree of specific performance, because the amount of the recovery was based solely upon Austin's obligations which Sherman had guaranteed but failed to pay. Such, however, is not the nature of an action for breach of a contract of guaranty. 1 Brandt, Suretyship and Guaranty, 3d Ed., § 142. The nature of the action is essentially one for damages for breach of contract. Noyes v. Adams, 76 Wash. 412, 136 P. 696; Meyer v. Hornby, 101 U.S 728, 25 L.Ed. 1078. The amount of the guarantor's liability is to be determined by the contract of guaranty. And that is to be construed in accordance with general rules of construction. 28 C.J. 963. In final analysis, that simply means...
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Sherman v. Western Const. Co., Inc.
...is barred from employing Sherman's alleged breach as a defense. We conclude, therefore, that this action is governed by the Western Construction Co. Since appellant's other assignment of error, that the court erred in striking certain portions of its answer and amended answer, is based on t......