29 Wash. 268 | Wash. | 1902
The opinion of the court was delivered by
On December 6, 1900, respondent entered into a contract with L. T. Parker, under which Parker agreed to furnish all labor and material and construct for respondent three cottages for the sum of $2,145; “first payment, $400, when cottages are roofed in; second payment, $800, wdien first and second coats of plaster are on; third payment, $945, one day after completion and acceptance of buildings ; all payments to be made on receipted bills as payments become due.” The contract provided that respondent might “during the progress'of said buildings require alterations, deviations, additions to-, or omissions from the said contract, specifications, or plans, and the same shall in no way affect or avoid the contract; but additional costs (if any) of such changes will be added to the amount of such contract price and deductions shall be made from said contract price for all omissions of work specified, at a fair and reasonable valuation.” And further provided: “Ho- bill or account for extra work will be allowed or paid unless authority for contracting same can be shown by a certificate from the owner, countersigned by the architect or superintendent.” To secure compliance with this contract by Parker, appellant executed the bond upon which this suit is based,
It appears that the original plans and specifications and the contract were prepared by one Robertson, an architect, on forms usual in such cases, which contemplated a superintendent for the work. Uo> superintendent was employed, bait the owner himself was about the work daily, and whatever superintendence was necessary he did himself. The contract provides especially that “should the owner, during the progress of the work, desire any deviation, alteration, additions to or omissions from said contract, specifications or plans, he shall be at liberty to have such changes made, and the same shall in no way affect or avoid the contract, but the additional cost shall be added to the contract price, and that no bill or account for extra work shall be allowed or paid unless authority for contracting the same can be shown by a certificate from the owner, countersigned by the architect or superintendent.” This provision of thei contract was for the benefit of the by him. It was intended as a rule of evidence as between the parties, which certainly could be waived by the owner owner,, to prevent a claim for extra work not authorized
Appellant also alleged in its answer, and offered to' prove, that a dispute arose between the contractor and respondent in regard to the reasonable value of the extras, and that, in accordance with the contract, Barker or his agent sought respondent and offered to submit such dispute to arbitra-' tors, and that respondent refused this offer. Under these circumstances, Barker was entitled to recover for the rea
The court below allowed respondent to1 recover for the amount of $552.67, $500.67 of which was the amount recovered in the action by lien claimants against his property, $50 for- respondent’s attorney in defending the action, and $2 for clerk’s fees for defendant’s appearance in the action brought by the lien claimants. This is alleged as error, (1) because the terms of the bond did not contemplate such damages; and (2) because the attorney’s fee was unnecessary. The contract provides that Parker shall furnish all materials and labor and construct the buildings. The bond provides that Parker shall well, truly, and faithfully perform the conditions of his contract. This court held in Wheeler, Osgood & Co. v. Everett Land Co., 14 Wash. 630 (45 Pac. 316), that the’true meaning and intent of the provision requiring the contractor to; furnish materials was certainly that he should pay for them, and not that he should simply supply them, and leave respondent to pay for them. This is the only reasonable deduction from such an agreement If the contractor furnished materials under the contract for w’hich he did not pay, and on' account of which liens were filed against his property, it became the duty of the contractor, or in default thereof the surety, to pay these liens; and neglecting to do so>, and thereby causing damages to; respondent, the respondent
Unless the extra work performed by Parker, and unpaid for at the time, was equal to the amount claimed by the lien claimants at the time the claims were filed, it was not 'error to allow the amount of $552.67.
There are several corrections and interlineations in the original contract and specifications offered in evidence by the respondent. It is claimed that the court erred in admitting this contract in evidence. The evidence clearly shows that these corrections and interlineations were made and inserted before the contracts were signed. There was no error in this respect.
Appellant alleged that the contract for the construction of the cottages was in fact a partnership- contract between Parker and one Merritt, as copartners, on the one side, and respondent on the other, and that this fact was well known to respondent, and not toi appellant, at the time the bond was given. The court refused to find — we think correctly, under the evidence — that the contract was in fact between Parker and Merritt, as copartners, on the one hand, and respondent on the other. It nowhere appeared in the written contract that Merritt, had any interest therein; nor does it appear by the evidence that respondent knew Merritt was a partner of Parker until some time after the contract was entered into, and until after the ■work was well under way. It also appears that- respondent’s first information • that Parker and Merritt were
It is argued that because respondent paid out money whenever orders were presented to him by Parker, “O B?d” by Merritt, such payments were not in accordance with the contract. It appears from the evidence that, whenever bills for work or materials furnished were presented to the respondent for payment, respondent required Merritt to “O1 K” them, and that these receipted bills were then paid. Merritt at this time was acting as foreman on the work. The contract provided that all payments should be made upon receipted bills as payments became due. The fact that Parker or respondent required these bills to- be approved by the foreman in charge of the work could make no difference. This was simply an additional precaution, and an evidence that the materials were actually furnished. It did not affect the contract in the slightest. The respondent had agreed to pay upon receipted bills. It is not shown that he paid before the amounts were due under the contract, nor that he refused to pay after the payments were due under the terms thereof. This did not release the surety.
For the first error above discussed, the cause will be reversed, and remanded to- the lower court for further
Reavis, C. J., and White, Anders, Hadley, Fullerton and Dunbar, JJ., concur.