56 Wash. 503 | Wash. | 1910
On or about June 8, 1907, James Gibson and W. Wellington Smith, copartners doing business under the name of Gibson & Smith, entered into a written contract with school district No. 7, of Yakima county, Washington, for the construction of a high school building for such school district, for the sum of $84,990. The building was to be completed on or before the 15th day of December, 1907. On the 8th day of June, 1907, Gibson & Smith, and the Aetna Indemnity Company as surety, entered into a bond with the state of Washington, conditioned that Gibson & Smith would pay,all laborers, mechanics, subcontractors, materialmen, and all persons who supplied the contractor or subcontractors with provisions and supplies for constructing the said building, and also all debts, dues, and demands incurred in the performance of the above-named contract. Gibson & Smith entered upon the construction of the building under their contract, and prosecuted the work until the 30th day of October, 1907, when Smith withdrew and Gibson thereafter continued
“To the Board of Directors of School District No. 7, Yakima County, Washington; School District No. 7, North Yakima, Yakima County, Washington; Gibson & Smith and James Gibson, and the Aetna Indemnity Company, 68 Williams Street, New York.
“The undersigned, the Cascade Lumber Company, a corporation, hereby notifies you that it has a bill against the high school building in the city of North Yakima, Yakima County, Washington, for material, etc., furnished to the builders thereof, to wit: Messrs. Gibson & Smith and James Gibson, to be used in said high school building, amounting to five thousand two hundred and fifty and 36-100 dollars ($5,250.36). We would like to have this account straightened up so that we shall not be compelled to take any legal steps to protect the same, which we shall be compelled to take unless this matter is adjusted. A copy of the bill for material etc., furnished, has this day been filed with the board of directors of said school district No. 7, at North Yakima, Yakima county, Washington, where the same can be seen.
“Cascade Lumber Company, By A. H Huebner.”
Thereafter on April 14, 1908, the said lumber company served and filed in the same manner the following notice, omitting the address, which is the same as in the notice above copied:
“Notice is hereby given that the undersigned, the Cascade Lumber Company, a corporation, organized and existing under the laws of the state of Washington, has a claim in the sum of five thousand two hundred fifty dollars and thirty-six cents ($5, 250.36), against the bond taken from James
“Cascade Lumber Company, By A. H. Huebner, Manager.”
Under date of January 7, 1908, the Yakima Hardware Company filed in the same manner a similar notice to the last named, except in the amount claimed, which was $646.02. On the 3d day of February, 1908, Garrett Brothers Company filed a claim substantially similar to the first claim above copied, and on April 14, 1908, Garrett Brothers filed another claim, substantially as the one last copied above, except in the amount, which was $324. The claims of the Yakima Hardware Company and Garrett Brothers were assigned to the Cascade Lumber Company, and the latter company, as plaintiff, brought suit in the superior court of Yakima county against Gibson & Smith and James Gibson upon the contract, and against the Aetna Indemnity Company upon its bond to recover these several amounts, with interest, setting up in the complaint that they had filed their notices of claim on the bond with' the board of school directors as hereinbefore set forth. Gibson & Smith did not appear in the case.
Defendant Aetna Indemnity Company appeared and filed a general demurrer, which was overruled. That company then filed an answer, admitting the execution of the bond and of the contract; denied, upon information and belief, all knowledge with respect to furnishing of materials by the claimants or any knowledge as to the merits of their claims.
The appellant contends that the notices first filed were insufficient in form, for the reason that there is no declaration therein of intention to claim upon the bond, and that these notices were prematurely filed because they were filed before the work was abandoned and before the work was completed and accepted- by the board. Section 5925, Bal. Code, provides for the giving of a bond by a contractor for public work for the benefit of the materialmen and laborers. The amendment of 1899, Laws of that year, page 172, provides :
“That such persons shall not have any right of action.on such bond for any sum whatever, unless within thirty (30) days from and after the completion of the contract with and acceptance of the work by the board . . . the . . . person claiming to have supplied materials, . . shall present to and file with such board ... a notice in writing in substance as follows: . . Notice is hereby given that the undersigned . . has a claim in the sum of-dollars . . against the bond taken from . . . for the work of . . . .”
In Huggins v. Sutherland, 39 Wash. 552, 82 Pac. 112, in construing this section, we said:
“The statute clearly makes the right to maintain the action upon the bond depend upon the notice provided for
It is true that the notices filed and served upon the Aetna Indemnity Company November 21, 1907, do not say specifically that the materialmen have a claim against the bond. But they do say that the claimant has a bill against the high school building for materials furnished to the builders to be used in the building, and the amount thereof. The notices were addressed to the surety company, and served upon it. These notices were the substance of the notice provided for by the statute. When it was addressed to and served upon the surety, that company must have known that the notice was given to them solely by reason of the bond, and that the claimants meant thereby to claim against the bond. The surety company could not have been misled thereby. These notices were therefore sufficient under the statute.
It is next argued that the first notices were premature because they were given before the work was abandoned and before the work was completed and accepted. The work had not been completed or accepted at the time the notices were given, or at the time this action was begun. The record' does not show that the building is yet completed. The statute says that the claimant shall not have a right of action on such bond “unless within thirty days from and after the completion of the contract and an acceptance of the work,” the claimant shall file his notice. Conceding that the abandonment of the work amounted to. a completion and acceptance thereof so far as materialmen were concerned, we are of the opinion that the statute only fixes the time after which the notices may not be filed. The words “from and after,” as here used, indicate when the time begins to run and when it ends, for the purposes of computation only; that is, the time began to run and included the day the work was completed. Vol. 4, Words & Phrases, pp. 2986-7. These
Certain books of the contractors were admitted in evidence at the trial. Appellant claims that these books were incompetent to show the amount of material furnished, by reason of the fact that the general manager who testified' concerning the entries therein had no personal knowledge of the transaction. The books were kept in the ordinary course of business by the contractors. These books were competent to show the fact that the materials were ordered and received. 17 Cyc. 366; Greenleaf, Evidence (16th ed.), § 187; Wigmore, Evidence, § 1077. The fact that slips or memoranda were made out by persons delivering and receiving the material, and that such slips were used by the bookkeeper in making the original entries in the books, did not, in our opinion, take away the character of the books as books of original entry. The evidence is also sufficient, we think, to support the findings that the material was furnished and used in the-
There is no error in the record, and the judgment is therefore affirmed.
Rudkin, C. J., Crow, Dunbar, and Parker, JJ., concur.