37 Wash. 60 | Wash. | 1905
In this action Galbraith, Bacon & Company, a corporation, by way of intervention seeks to foreclose a mechanics’ lien. The account was originally held by one Bamberg, and was for labor and material, furnished in the construction of a house for the defendant Hattie E. Spittle. The account, with any right to assert a .lien, was assigned by Bamberg to said intervenor, and the latter thereafter filed a notice, claiming a lien. Bamberg was a subcontractor in the constrúction of the building, one
The answer denies the material allegations of the complaint, and affirmatively avers the foregoing facts concerning the contractor’s bond and the surety indemnifying contract, which are urged as amounting to a waiver by Bamberg of any right to a lien. The cause was tried by the court, and resulted in a judgment denying the lien and dismissing the complaint in intervention. The intervenor has appealed from the judgment.
The principal argument made by appellant is based upon the theory that the court decided the case upon the ground that Bamberg, appellant’s assignor, had waived his right to a lien. A remark made by the court, when deciding the case, indicates that such was his theory. It is urged by appellant that there was no evidence- upon the subject, and that the court’s conclusion is therefore erroneous. It was the court’s theory, however, that the facts which it held amounted to a waiver of the right to a lien were admitted by the pleadings. The answer alleged that the contractor’s bond was given to protect the owner against liens, and that Bamberg joined in the indemnity contract to save the surety harmless. The reply does not deny the essential facts, but in effect simply alleges that Bamberg never waived his right to a lien.
We think the court was right in its view that the material facts as to the waiver were admitted. The answer alleges that one of the considerations for the contractor’s
The court appeal’s to have decided the case upon the foregoing theory. Ho specific finding was made as to whether the lien notice was filed in time or not. But, from the evidence before us, we think the judgment is further
The judgment is affirmed.
Mount, C. J., Fullerton, and Dunbar, JJ., concur.
Rudkin, Root, and Crow, JJ., took no part.