Wheeler v. Ralph

• Decision Date: 15 July 1892
• Citation: 4 Wash. 617,30 P. 709
• Court: Washington Supreme Court
• Parties: WHEELER ET AL. v. RALPH ET AL. TURNER ET AL. v. SEGERSTROM ET AL. HAMBLY ET AL. v. RALPH ET AL. ST. PAUL & T. LUMBER CO. v. SAME.

30 P. 709

4 Wash. 617

WHEELER ET AL. v. RALPH ET AL.

TURNER ET AL. v. SEGERSTROM ET AL.

HAMBLY ET AL. v. RALPH ET AL.

ST. PAUL & T. LUMBER CO. v. SAME.

Supreme Court of Washington

July 15, 1892

Appeal from superior court, Pierce county; FRANK ALLYN, Judge.

Four actions by Wheeler, Osgood & Co. against Jacob Ralph and others, J. Turner and others against H. Segerstrom and others, L. R. Hambly and others against Jacob Ralph and others, and the St. Paul & Tacoma Lumber Company against Jacob Ralph and others, for foreclosure of mechanics' liens and an accounting, the cases being consolidated for trial. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

Pritchard, Stevens, Grosscup & Seymour, and Snell & Bedford, for appellants.

A A. Knight, Parker & Williamson, and Griggs &amp Lockwood, for respondents.

SCOTT J.

Jacob Ralph, being the owner of certain real estate situated in the city of Tacoma, contracted with the Puget Sound Building Company, composed of Alexander Anderson and John Almquist for the erection of certain buildings thereon, and W. P. Sundberg, H. Nyman, Peter Holmgren, and Nels P. Olson joined in said contract as third parties, becoming responsible for the carrying out of the contract by the said Puget Sound Building Company. Subsequently, Wheeler, Osgood & Co., who furnished certain materials to said contractors, which were used in the construction of said buildings, filed a notice of lien upon the premises therefor, and brought an action to foreclose the same. Jacob Ralph filed an answer and cross complaint, alleging that he had no knowledge or information sufficient to form a belief as to the amount or value of said alleged materials, and, for the purpose of placing said claim in issue, he denied that any of said materials were purchased for or used in the construction of said houses, or any of them, and further denied that they were of the value stated in the complaint. There was no denial of the filing or of the sufficiency of the lien notice. In his cross complaint he set up the contract, and alleged that the defendants Anderson and Almquist thereby contracted to construct said houses according to certain plans and specifications furnished by one Robertson therefor, which houses were to be completed on the 20th day of June, 1890, in consideration of which he agreed to pay $16,390; and alleged that the contract further provided, in case of failure to complete said houses on the 20th day of June, 1890, said Anderson and Almquist were to pay to him $15 for each day the fulfillment of the contract was delayed beyond the time specified. He further alleged that said contract contained the following: "The said W. P. Sundberg, H. Nyman, Peter Holmgren, Nels P. Olson, as parties of the third part, are held and firmly bound unto said Jacob Ralph, party of the first part, in the sum of six thousand dollars of good and lawful money of the United States, to be paid to said Jacob Ralph, his heirs, executors, administrators, and assigns, which payment well and truly to be made they bind themselves, their heirs, executors, administrators, and each of them, by these presents. The condition of this obligation is such that the above-bounden Alexander Anderson and John Almquist, said parties of the second part, their heirs, executors, and assigns, shall in all things stand to and perform the conditions, covenants, and agreements mentioned and contained in the foregoing contract for the buildings this day entered into by and between them and the said Jacob Ralph, to be kept and performed at the time and in the manner and form therein specified, then this obligation shall be void; otherwise to remain in full force and effect,"-which obligation and bond was duly signed, executed, and delivered by the defendants aforesaid. He alleged that on the 16th day of February, 1890, he delivered possession of said real estate to said Anderson and Almquist, and provided the same in all respects ready for them to begin work on said day, which was the time fixed in the contract; and that he had at all times complied upon his part with the terms and conditions of said contract, and that he had paid to said Anderson and Almquist, or persons authorized by them to receive the same, all of said sums, save and except the sum of $4,198, which remains unpaid, subject to the deduction hereinafter stated. He alleged that the defendants Anderson and Almquist failed on their part to complete said houses by said 20th day of June, and that the same were not completed until the 2d day of September, 1890, by reason of which damages accrued to him in the sum of $1,095; which sum, by the terms of said contract, he was entitled to deduct from said sum remaining unpaid, leaving due the sum of $3,103, which he stood ready to pay to any party the court might direct the same to be paid to. He alleged there were other parties claiming liens on said premises; that Hambly and McMillan and the St. Paul & Tacoma Lumber Company had filed in the office of the auditor of Pierce county notices of liens upon said property, claiming that they were entitled to liens by reason of having furnished labor and material in the construction of said houses through said Anderson and Almquist, and that there were others threatening to file liens thereon. He alleged that he knew nothing of the validity of any of said claims, but that the record of the same was a serious cloud upon his title to said premises, preventing him from selling or disposing of the same as he might otherwise do, and that by reason of these claims for liens he was unable to settle his accounts with the said Anderson and Almquist, and that each of said parties claiming liens were threatening foreclosure thereof. He alleged that he had called upon Anderson and Almquist, Nyman, Olson, Sundberg, and Holmgren, and demanded that they settle said liens, which demand they refused to comply with, and that the amount claimed by said parties was largely in excess of the sum of $3,103; and, if upon the final determination of said claims they should be found valid, he was willing to pay thereon a sum not to exceed the amount remaining due on the contract. And, further, that by the terms of the contract the said Anderson and Almquist, Olson, Sundberg, Nyman, and Holmgren, were legally bound to pay for all labor employed and materials used in the construction of said houses, and to discharge all valid liens existing against said premises by reason of their contracts for labor and material employed in the construction of the same. He alleged that after the commencement of this suit by Wheeler, Osgood & Co., and after being threatened with other suits for the foreclosure of other liens, and after the refusal of the original contractors, or their said bondsmen, to settle and discharge the same, he commenced an action to compel an accounting and settlement of all of said claims, which action was then pending. And he alleged that if this action, and the others that were threatened, were proceeded with, he would be greatly annoyed, and caused irreparable injury and expense, and that all of said cases and the rights of said parties should be adjudicated in one litigation. He therefore asked that said Hambly and McMillan, the St. Paul & Tacoma Lumber Company, and Anderson and Almquist, with their bondsmen aforesaid, be made parties to this action, and that said Hambly, McMillan, and the St. Paul & Tacoma Lumber Company be required to come into court and answer, setting up their claims, in order that the same might be adjudicated, and in case they failed to do so that the same be barred. He further asked that Anderson and Almquist, Nyman, Olson, Holmgren, and Sundberg come into court and make defense to all the claims of said parties claiming liens, and, in case they failed to do so, and if any of said liens should be adjudged valid, that then they be ordered to pay the same; and, in case of their failure so to do, that judgment be entered as the law authorizes, and also for such relief as he was entitled to in equity.

The defendants Anderson and Almquist, and Sundberg, Nyman, Holmgren, and Olson, and Wheeler, Osgood & Co. filed answers to the said answer of Jacob Ralph and the cross bill therein contained. The answer of the defendants Anderson and Almquist admitted their indebtedness to the several respective parties upon the claims made by them for labor and materials furnished which entered into the construction of said houses, but denied each and every other allegation of the cross complaint.

The defendants Nyman, Olson, Sundberg, and Holmgren answered denying they had any knowledge or information sufficient to form a belief as to the claims of Wheeler, Osgood & Co. and the St. Paul & Tacoma Lumber Company, and therefore denied the same, but admitted having entered into a contract with Jacob Ralph as set out in his complaint, but alleged they had no knowledge or information sufficient to form a belief as to any of the other allegations therein contained, and therefore denied the same; and, for a further defense and counterclaim as against said Jacob Ralph, said defendants alleged that the contract set out in said cross complaint was a changed and different contract from that originally entered into between said Ralph and Anderson and Almquist and themselves, and that said contract was so changed without any notification to them as bondsmen, and that the changes in said contract were so great and varied that the contractors could not perform the conditions and have said buildings ready on the 20th of June, as specified in the original contract; and that all the damages that may have resulted to the plaintiff were caused by said changes, and not through any fault or negligence of the contractors; and...