8 Wash. App. 872 | Wash. Ct. App. | 1973
Plaintiff C-Star Concrete Corporation, a materialman sued defendants Utilities Construction Corporation, contractor, and Hawaiian Insurance and Guaranty Company, its surety on the construction bond, to recover for materials furnished for incorporation in a municipal street improvement in Everett, Washington. The court grant
C-Star supplied certain materials to Utilities for street improvement in Everett, Washington, pursuant to a written contract between them. Following a dispute over billing, C-Star filed a complaint 'against Utilities and Hawaiian for $20,202.23. Each defendant denied liability. The contractor also pleaded several affirmative defenses, and alleged that “the sum of $19,842.09 is herewith tendered in satisfaction of said indebtedness to the plaintiff through the Clerk of the Court.” No sum accompanied the tender alleged.
On September 2, 1970, C-Star moved for summary judgment against defendants, the motion being supported by two affidavits setting out the items making up the account. The contractor’s defense was contained in its attorney’s affidavit, which pointed out the respects in which plaintiff’s claims were excessive. However, it was admitted in the affidavit that after making certain corrections, the amount owing was $18,486.85. Defendant tendered a check for the admitted sum to the clerk of the court. The court later entered summary judgment in favor of C-Star for the sum admitted to be due, but reserved a determination of the amount to be allowed by way of attorney’s fees and interest to a later date. On November 9, 1970, the court entered an order allowing plaintiff attorney’s fees of $1,000, interest of $1,566.95, and statutory costs of $31. Defendants appeal from the November 9, 1970 order contending that neither the attorney’s fees, costs, nor interest should be allowed.
Defendants contend that RCW 39.08.030 is a bar, first, to plaintiff’s right of action on the surety bond because plaintiff’s notice for a claim of lien was premature in that it was filed before the street improvement project was accepted by the City of Everett, and second, to plaintiff’s claim for attorney’s fees because plaintiff’s action was instituted before the expiration of 30 days following a timely filing of the above-mentioned notice.
Provided, That such persons shall not have any right of action on such bond for any sum whatever, unless within thirty days from and after the completion of the contract with an acceptance of the work by the affirmative action of the board, council, ... or body acting for the . . . municipality, . . . the . . . materialman . . . shall present to and file with such board, council, ... or body acting for the . . . municipality, . . . a notice in writing in substance as follows:
. . . and in any suit or action brought against such surety or sureties by any such person or corporation to recover for any of the items hereinbefore specified, the claimant shall be entitled to recover in addition to all other costs, attorney’s fees in such sum as the court shall adjudge reasonable: Provided, however, That no attorney’s fees shall be allowed in any suit or action brought or instituted before the expiration of thirty days following the date of filing of the notice hereinbefore mentioned: . . .
The first quoted proviso of RCW 39.08.030 is inapplicable. In fixing a 30-day filing period after acceptance of the work, the statute merely fixes “a limit beyond which the notice of claim cannot be filed . . .” Washington Monumental & Cut Stone Co. v. Murphy, 81 Wash. 266, 274, 142 P. 665 (1914). As the court in Washington Monumental & Cut Stone Co. v. Murphy, supra, points out:
The purpose of the statute was fully met . . . when, after completion of its own contract, it filed its claim at a time short of thirty days after acceptance of the whole work covered by the general contract . . .
81 Wash, at 274-75. To the same effect see Puget Sound Bridge & Dredging Co. v. Jahn & Bressi, 148 Wash. 37, 268 P. 169 (1928); Cascade Lumber Co. v. Aetna Indem. Co., 56
Defendant surety contends that an attorney’s fee cannot be allowed against it because the surety did not contest plaintiff’s claim. It argues it merely denied that the sum of $20,202.23 was the correct sum owing. The surety’s answer did much more. It denied the allegations of the complaint except that it admitted that it “is surety on a contractor’s bond provided by the defendant” contractor. It alleged affirmatively “that the plaintiff did not file a proper notice of its claim and that said notice is defective and not timely.” It prayed “that said complaint be dismissed and it recover its costs and disbursements incurred herein.” Such an answer clearly contests the claim. The surety relies on Brear v. State Highway Comm’n, 67 Wn.2d 308, 407 P.2d 423 (1965); Niemi v. Brewster, 154 Wash. 181, 281 P. 488 (1929); Maryland Cos. Co. v. Hill, 100 Wash. 289, 170 P. 594 (1918). The cases are distinguishable.
Defendant claims the amount of the attorney’s fees is excessive. The issue raised is not assigned as error and cannot be considered. CAROA 43.
Defendants contend that plaintiff is not entitled to interest because the sums sued for were unliquidated. C-Star’s contract with defendant Utilities Construction Corp. provides:
Accounts are due on the 10th of the month following delivery. Interest at 1% per month will be charged on any overdue account.
Plaintiff sued for $20,202.23. The contractor’s answer admitted that the sum owing was $19,842.09. Following the motion for summary judgment, it admitted and tendered into court the sum of $18,486.85. The court allowed interest on the sum so tendered from December 23, 1969, the date of
Defendants finally contend that the court erred in awarding attorney’s fees, interest and costs (a) after a full tender pursuant to RCW 4.84.110 and 4.84.120 and acceptance of the tender; and (b) after tender pursuant to the same statutes “which exceeded the judgment entered in this cause.” We consider these contentions together.
RCW 4.84.110 provides:
When in an action for the recovery of money, the defendant alleges in his answer, that, before the commencement of the action, he tendered to the plaintiff the full amount to which he is entitled, in such money as by agreement ought to be tendered, and thereupon brings into court, for the plaintiff, the amount tendered, and the allegation be found true, the plaintiff shall not recover costs, but shall pay them to the defendant.
RCW 4.84.120 provides:
If the defendant in any action pending, shall at any time deposit with the clerk of the court, for the plaintiff, the 'amount which he admits to be due, together with all costs that have accrued, and notify the plaintiff thereof, and such plaintiff shall refuse to accept the same in discharge of the action, and shall not afterwards recover a larger amount than that deposited with the clerk, exclusive of interest and cost, he shall pay all costs that may accrue from the time such money was so deposited.
The judgment is affirmed.
Williams and Callow, JJ., concur.
