93 Wash. 103 | Wash. | 1916
Plaintiff, as a materialman, brought this action upon the bond given by the original contractor under the provisions of Rem. & Bal. Code, Title VIII, ch. 6, § 1159 et seq., as security for labor and materials furnished in the prosecution of a public work.
“Section 1. Said improvements shall be made under the superintendence of the city engineer of said city, and subject to the acceptance and approval of the city council, and the same shall be completed within the time fixed in the annexed specifications, and stipulations under the penalty therein provided. Said party of the second part shall furnish all skill, labor and material required for the complete performance of this contract and shall produce a completed improvement.
“Section 6. That during the time allowed in the contract for the completion of the work and on or about the 10th day of the month following the issuance of the estimate by the city engineer, the city clerk'shall deliver to the contractor a warrant in an amount equal to ninety per cent of such estimate, and the balance of said contract price being ten per cent of such estimate, shall be retained for a period of thirty days after the final completion of the improvement, and no improvement shall be deemed completed until the city engineer shall have filed with the city clerk a statement declaring the same to have been completed. But neither said statement nor any acceptance of said work by the city council shall prevent the city from thereafter making claim for uncompleted or defective work if the same is discovered within two years from the completion and acceptance of the work. No payment shall be issued to the contractor in any event for any part of said ten per cent reserve until the city engineer shall certify to the city clerk that the thirty days since the completion of the work have elapsed, and that no uncompleted or defective work has been discovered for which the city makes claim.
*105 “Section 7. That in case no lien is claimed against said ten per cent so reserved during said thirty days, and no uncompleted or defective work shall have been discovered and reported by the city engineer during said time, then the ten per cent required to be held as a reserve to protect laborers and material men shall, at the expiration of said thirty days, be paid to the contractors in warrants. But in case notice of such liens is given the city during said period, by or on behalf of any person claiming such lien, or in case the city engineer shall report any claim of the city by reason of uncompleted or defective work, then the amount of all liens so claimed shall be reserved by the city until final determination of such lien claims, and the cost of perfecting such uncompleted or defective work shall be retained until such uncompleted or defective work shall have been perfected or arranged to the satisfaction of the city engineer. . . .
“Section 8. That no estimate will be issued after the time allowed in the contract for the completion of the work, except the complete and final estimates.”
The specifications provided that the work should be done and fully completed “in accordance with the plans and specifications and to the satisfaction of the city engineer”; that the contractor shall conform to the directions of the city engineer; that if changes be made “the city engineer shall estimate the amount to be allowed therefor and his decision shall be final and conclusive.” Many other provisions appear in the specifications as well as in the contract, showing that the fullest authority of supervision and control of the work was vested in the city engineer.
The last piece of brick pavement was laid, grouted with cement and covered with tarpaulin on the afternoon of November 25, 1913. On the same evening the city engineer furnished to the contractor what is designated as the “complete estimate,” certifying in terms that the job was then “one hundred per cent completed” and that the contractor was entitled to $10,041.57. This sum was ninety per cent of the contract price then remaining unpaid. This complete estimate or certificate of completion also conveyed the informa
“Moved and seconded, that the engineer’s estimate of work completed by J. J. McNemey on Wenatchee Avenue, and other streets, amounting to the sum of $10,041.57, be allowed, and that a warrant be drawn for the amount; carried.”
The city engineer testified, in substance, that he then explained to the city council that the work was then completed, but that the ten per cent should be held up for the further period of thirty days.
On December 28, 1918, the city engineer filed his so-called “final estimate,” referring to the complete estimate of November 25, 1918, for the details, and showing the same final balance due of $16,856.17, and stating that warrants should not be issued for that sum until December 25, 1918, when the thirty-day period would expire. The council thereupon made the following order:
“Moved and seconded that the final estimate of work done on Wenatchee Avenue and other streets by contractor Mc-Nerney, amounting to the sum of $16,856.17, be allowed and a warrant drawn for the amount, the surrender of said warrant to J. J. McNerney to be subject to the approval of the city attorney. Carried.”
On January 2, 1914, plaintiff filed with the city clerk its claim against the bond. This was within thirty days after
The trial court found in substance that the contract was completed and the work accepted by the city council on November 25, 1913, and that the plaintiff’s notice was tardy. A decree was accordingly entered dismissing the action as against Ed. S. Russell and National Surety Company. Plaintiff appeals.
The sole question is this: When was the contract completed and the work accepted by the city council? The statute in force when this bond was given and when the action was tried and judgment rendered, Rem. & Bal. Code, § 1161, provided that no laborer or materialman shall have any right of action on the bond “unless within thirty days from and after the completion of the contract with and acceptance of the work by the board, council,” etc., he shall present and file with such board, council, etc., a notice in writing in substantial compliance with the form in the statute prescribed. The statute as amended in 1915 requires acceptance by “affirmative action” of the board or council. Laws of 1915, p. 62, § 2; Rem. 1915 Code, § 1161. The amending act of 1915 provides that the amendments shall be retroactive. We entertain grave doubt as to the constitutionality of this retroactive provision, but in any event the amendments were not the law when the judgment here assailed was rendered, hence cannot affect it.
It will be noted that the statute makes no provision for the holding up of any portion of the contractor’s pay for any time after the completion of the contract and acceptance of the work. That provision is found only in the contract. The holding up of the ten per cent, estimated in both the complete estimate and the final estimate, therefore must be referred to the contract, not to the statute. Both the bond and every right which can be asserted under it is referable solely to the statute. There can be no question but that, on November 25, 1913, the date of the engineer’s complete certificate, the
Even aside from any affirmative action on the part of the city council, this case is controlled by our decision in the case of Wheeler, Osgood Co. v. Fidelity & Deposit Co., 78 Wash. 328, 139 Pac. 53. In that case we held that, because the contract gave the architect control of the work and provided for the payment on the architect’s certificate, an ac
The facts and the law involved in the Wheeler, Osgood Company case were passed upon by this court in three cases —in that case, in the case of Union Iron Works v. Strauser, 82 Wash. 51, 143 Pac. 446, and in the case of McGowan Brothers Hardware Co. v. Fidelity & Deposit Co., 84 Wash. 470, 147 Pac. 44. In the first two of those cases exhaustive
The judgment is affirmed.
Morris, C. J., Mount, Fullerton, and Chadwick, JJ., concur.