22 Wash. 592 | Wash. | 1900
On February 17, 1896, one James Forest entered into a contract with the city of Seattle to improve, to the established grade, Harvard Avenue Forth, from the north end of the existing improved section to the north margin of East Highland Drive, upon certain terms set forth in the contract. Afterwards, and on September 3, 1896, a supplementary and amendatory agreement to said contract for said improvement was made between the city and James Forest, in accordance with ordinance Fo. 4279 of said city, providing for the payment for said improvement in local improvement bonds and warrants at the same rate specified in the original contract. It was provided in said supplementary agreement that said bonds and warrants were to be issued as said work progressed, upon an estimate being made thereof by the city engineer as follows : On or about the 20th day of each month during the progress of said work, bonds and warrants were to be issued for seventy per cent, of the contract price of the estimated amount of said work returned by the city engineer as having been done during the preceding calendar month, and the balance of said contract price, being thirty per cent, thereof, to be retained to secure the payment of laborers who shall have perforined work thereon, and material men who may have furnished materials therefor. The said contract further provided that, “the said contractor agrees to pay the wages of all persons and for assistance of every kind employed upon or about said work, and for' all materials purchased therefor; and the said city of Seattle may withhold any and all payments under this contract until satisfied that such wages, assistance, and materials have been fully paid for.” On the said 3d day of September, 1896, the said James Forest executed a bond to the city of Seattle with John Dowling, Kosa A. Dowling,
The trial court, after considering the evidence in the case and making and filing its findings of fact and conclusions of law, entered a judgment and decree, ordering George M. Holloway, clerk of the court, to sell the bonds and collect the warrants deposited in court by the defendant city in the sum of $3,378.55, and to turn the bond in the sum of $20.59, for extra work performed by Dowling, over to plaintiff John Dowling, or his assigns, and to pay from the funds derived from the sale of said bonds and the collection of said warrants, amounting to $3,378.55,
And these assignments, being valid when made and assented to by the city, were not invalidated by the subsequent default of Forest. It is true that the city, by virtue of a provision of the agreement which we have herein-before noted, might have withheld all payments from the contractor until it’was satisfied that all just claims for labor and materials had been fully paid; but it does not follow from that fact, as contended by the learned counsel for appellants, that it was obliged to do so, and that, having done otherwise, it should now be held to be a trustee of the laborers and material men, and, as such, liable to them directly for the amount of the fund assigned and of the bond delivered to the contractor. If these appellants had had a lien upon this fund, as they had upon the thirty per cent, of the amount of the monthly estimates which was withheld by the city, there would be at least some ground for the claim that the city is their trustee. But, in the absence of such lien, this contention cannot be sustained.
It is further claimed that the bondsmen, having completed the improvement, thereby became subrogated to all the rights the city had or could enforce against their principal, Forest, and consequently have the right to demand that the moneys which might have been withheld during the progress of the work be paid to the laborers and material men, to the entire exclusion of the assignees of the
It appears to us that the judgment of the superior court was right, and it is therefore affirmed.
Dunbar, C. J., and Beavis, J., concur.