104 Wash. 663 | Wash. | 1919
This action was instituted by appellant for the purpose of recovering money loaned to the defendant Lane for use in prosecuting his work under a highway.contract, and respondent is sought to be held by reason of its being surety upon the bond given in accordance with the terms of that contract. From a judgment denying a recovery against the bond, this appeal is taken.
It is not necessary to set out here the various transactions which took place between the appellant and the contractor, but for present purposes it is sufficient to say that the appellant loaned the contractor a large sum of money, and he assigned the proceeds of the contract to the appellant as security for such loan. Appellant received the several payments made by King county during the progress of the work, and, by stipulation, afterwards, and after crediting all of such payments, filed its lien claim, and now seeks judgment against the bond for upwards of $16,000.
It becomes necessary then to inquire tbe meaning of tbe statutory language which is incorporated in tbe bond in this case and in tbe contract in pursuance of which tbe bond was given. In Puget Sound State Bank v. Gallucci, 82 Wash. 445, 144 Pac. 698, Ann. Cas. 1916A 767, which like Title Guaranty & Surety Co. v. First Nat. Bank of Hoquiam, 94 Wash. 55, 162 Pac. 23, turned upon tbe language of tbe contracts and bonds, just as did tbe Coffman-Dobson case, and in
“If the solution of this problem rested alone upon the language of the bond and statute, there would be fair ground upon which to rest the argument that the words ‘all just debts, dues and demands incurred in the performance of the work,’ not being preceded by the conjunctive ‘and,’ related to debts, dues'and demands incurred and payable from Gallucci to the persons specifically named therein, to wit, ‘laborers,’ ‘mechanics,’ ‘subcontractors,’ ‘materialmen,’ and persons furnishing ‘supplies for carrying on of said work.’ ”
And again:
“We cannot escape the conclusion that this provision of the contracts includes debts incurred by Gallucci of the nature here involved; that is, that he incurred such debts to the bank ‘in the performance of said work,’ though this conclusion might not be correct where the bank’s right rested alone upon the language of the bonds and statute.”
We are convinced, by a careful reading of the act of 1909 as a whole, that the legislature intended it to mean just what Judge Parker said there were fair grounds for holding it to mean, i. e., that the words ‘‘‘all just debts, dues and demands” refer to the classes of persons immediately thereinbefore named, so that the only logical construction is that quoted from the Gallucci case. If the legislature intended otherwise, why did it, throughout the entire act, refer to the persons mentioned in § 1, namely, laborers, mechanics, subcontractors, materialmen, and those who furnished supplies, and nowhere mention creditors, or use any term which would cover those holding claims other than for labor, materials or supplies ? The form of the notice provided in § 3 of the act should not, of course, be permitted to override or modify any ex
It should he borne in mind that the legislature had in view here public works and buildings and was providing security and protection only to those who, if the work were private in its nature, would be protected by the lien laws. In other words, the bond given under this statute and in the statutory language becomes a substitute for the right of lien which would exist were the work private. And, therefore, looking to analogous lien cases for a rule as to who may claim under the bond, we find the prevailing doctrine to be that one who loans money is entitled to no lien therefor. Lawson v. Higgins, 1 Mich. 225; Steamboat James Battle v. Waring, 39 Ala. 180; Dart v. Mayhew & Co., 60 Ga. 104; Cadenasso v. Antonelle, 127 Cal. 382, 59 Pac. 765; Lion Bonding & Surety Co. v. First State Bank (Tex. Civ. App.), 194 S. W. 1012.
Hence it logically follows that one who loans money to a contractor on public work cannot claim under the statutory bond.
Nor are we impressed by the argument that the legislature in 1915 (Laws of 1915, p. 61; Rem. Code, § 1159), when it amended the act of 1909 (Laws of 1909, p. 716; Rem. & Bal. Code, § 1159), by leaving out all reference to debts, dues and demands, and by adding a proviso to the effect that the provisions of the act shall not apply to any money loaned or advanced, thereby construed the former act as appellant would have it. It seems to us more logical to say that the legislature of 1915 for some reason feared that this court or some other court might so construe the act against its intent, and by amendment it made haste to
Our conclusions upon this branch of the case make it impossible for the appellant to recover in any event, and it is therefore unnecessary to discuss the other questions raised.
The judgment of the court below is right, and is therefore affirmed.