Wheeler, Osgood & Co. v. Everett Land Co.

• Decision Date: 06 June 1896
• Court: Washington Supreme Court
• Parties: WHEELER, OSGOOD & CO. v. EVERETT LAND CO. ET AL.

45 P. 316

14 Wash. 630

WHEELER, OSGOOD & CO. v. EVERETT LAND CO. ET AL.

Supreme Court of Washington

June 6, 1896

Appeal from superior court, Snohomish county.

Action by Wheeler, Osgood & Co., a corporation, against the Everett Land Company and others to enforce a mechanic's lien. There was judgment for plaintiff as against the other defendants, and from a judgment in favor of the defendant the Everett Land Company plaintiff appeals. Affirmed.

Hudson & Holt, for appellant.

Francis H. Brownell, for respondent.

SCOTT J.

This was an action to foreclose a lien for materials sold by appellant to defendant Grant, as contractor for use in the construction of an hotel owned by the Everett Land Company. The contractor and a number of other persons were made co-defendants, but none of them except respondent appeared in the action. The respondent answered, denying most of the allegations of the complaint, and in addition thereto set up as an affirmative defense and counterclaim that appellant was surety upon a bond given by the contractor to secure the erection of the building, the condition of which was as follows: "The condition of this obligation is such that if the said T. L. Grant shall erect, finish, and complete all the mason work, carpenter and joiner work, tin work, iron work, painting, and glazing for a three-story frame building designed for an hotel to be erected in the city of Everett, Washington, and according to plans and specifications, and complete the work in a good, substantial and workmanlike manner, and furnish all materials, then this obligation shall be void; otherwise, it shall be and remain in full force and virtue,"-and that by reason thereof appellant was not entitled to a lien upon the building, and was also liable to the respondent for a sum expended for materials by it to complete the building, the contractor having failed so to do; and asked for a judgment for such sum. The appellant resisted the matters set up in said defense on three grounds: It denied that it had any authority to become a surety; claimed that it was released from liability by reason of an alteration in the specifications made after the bond was executed, which provided for an addition to the hotel; and it further contended that the provision in the bond that the contractor was to furnish the materials for the building did not mean or provide that the contractor should pay for them. The court found that appellant was entitled to a judgment against the contractor, Grant, for a balance due upon its claim for materials furnished him; that the bond given by the contractor, upon which appellant was surety, was a valid obligation, and binding upon appellant; that the conditions of the bond had been broken; and that the respondent had been damaged thereby in the sum of $756.72, and was entitled to judgment against the contractor and appellant therefor. Whereupon this appeal was taken.

As to the claim that appellant had no authority to become a surety upon the bond, it is conceded that there was no statute prohibiting it from so doing, and the contention is based upon a want of power to do so under its articles of incorporation. Said articles provided that appellant should be authorized, "to carry on the manufacture and sale of lumber in its various forms, including sash, doors, blinds and kindred work, furniture and wooden ware, sawing and planing lumber, and everything connected with the manufacture and sale of lumber, and to purchase and sell timber and timber lands, and to do anything and all kinds of business allowed to corporations, as provided for under the laws of Washington Territory." It was proved upon the trial that it was customary...