No. 8371 | Wash. | Apr 28, 1910
This is an action to foreclose an indemnity mortgage. A trial resulted in findings and judgment in favor of the plaintiffs, and certain of the defendants have appealed.
The material facts are, in substance, as follows: The National Surety Company is a corporation authorized to transact the business of surety in this state. On April 27, 1905, John J. Walsh executed and delivered to E. C. Macdonald, as trustee for the National Surety Company, a mortgage upon real property in Spokane, which mortgage by its terms was given to secure the sum of $3,500. This mortgage was intended to indemnify the surety company against any damage or loss which it might incur upon any bond thereafter executed by it at the request or for the benefit of John J. Walsh. On May 25, 1906, at the instance and request of John J. Walsh, the surety company executed and delivered its bond as surety in his behalf in favor of the Standard Furniture House, incorporated, in the sum of $7,500, whereby the surety company guaranteed that he would well and truly perform a certain building contract for the construction of a building, entered into on that day by him with the Standard Furniture House. By the terms of the building contract he was to furnish all material and labor for the erection and completion of the building, according to certain plans and specifications, at an agreed compensation of $15,050.75, and was to protect the property against all claims and liens occurring by reason of the construction of the building. It was provided in the contract that “The said parties for themselves, their heirs, successors, executors, administrators and assigns, do hereby agree to the full performance of the covenants herein contained.”
On July 21, 1906, John J. Walsh died. At that time a comparatively small part of the contract had been performed. Soon thereafter Edward O’Shea was appointed and duly qualified as administrator of the estate of John J.
Learned counsel for appellants contend that the contract for the construction of the building constituted such a personal relation between him and the Standard Furniture House that his obligation under the contract to construct the building did not survive but died with him, and that there was no obligation cast upon his personal representative, or his estate, requiring the completion of the building; and hence the surety company was under no obligation to pay hen claims, accruing after the death of Walsh, in the construction of the building. The general rule governing the survival of contractual obhgations, as against the personal representative and the estates of deceased'persons, is stated in 2 Parson’s on Contracts (9th ed.), 685, as follows:
*172 “It is a presumption of law that parties to a simple contract intended to bind not only themselves, but their personal representatives; and such parties may sue on a contract, although not named therein. Hence, as we have seen, executors, though not named in a contract, are liable, so far as they have assets, for the breach of a contract which was broken in the lifetime of their testator. And if the contract was not broken in his lifetime, they must not break it, but will be held to its performance, unless this presumption is oveicome by the nature of the contract; as where the thing to be done required the personal skill of the testator himself.” See, also, 18 Cyc. 239.
This rule is elementary. The difficulty in applying it arises when the facts of the particular case are such as to render it doubtful as to whether or not the thing to be done requires the personal skill of the deceased himself. The supreme court of Pennsylvania in Billings’ Appeal, 106 Pa. St. 558, 560, said:
“Where a party agrees to do that which does not necessarily require him to perform in person, that which he may, by assignment of his contract or otherwise, employ others to do, we may fairly infer, unless otherwise expressed, that a mere personal relation was not contemplated. It is true, also, perhaps, that a contract may involve matters of such a nature as to render the performance of them so incompatible with the settlement of a decedent’s estate, and so inconsistent with the general duties of an administrator or executor that, in the absence of any express provision to the contrary, the parties may be presumed, as in the case of Dickinson v. Calahan’s Administrator, 7 Harris, 227, to have intended its dissolution at death. The whole question, in each case, is one for construction, and depends upon the intention of the parties, that intention to be found under the rules regulating the construction of contracts in general.”
In the case before us there is no doubt of the intent of the parties to make this building contract binding upon the administrator of John J. Walsh as his personal representative in the event of his death before the completion of the building, since the contract by its express terms so provides.
“If one agrees to build a house before a given time, and dies before that time, his executors are bound to perform the contract; and the completion by an administrator of a decedent’s contract to build a house attaches to his work all the liabilities of the original contract, so that a sub-contractor is entitled to his lien for materials furnished the intestate.”
See, also, 3 Williams, Executors (7th Am. ed.), 224. Both
We are of the opinion that the obligations of John J. .Walsh under this contract survived him and were binding upon his .estate. It follows that the surety company was as much bound to the performance of this contract after the ■death of Walsh as it would have been had he lived to perform the contract in person.
One of the claims paid by the surety company was that of ■one Hutter, who was employed by the administrator to superintend the construction of the building. It is contended the administrator was not authorized to so employ Hutter, but it seems to us that the administrator was as much authorized to employ a superintendent as he was to employ mechanics and laborers. It is not seriously contended that a skilled ■superintendent was unnecessary. Indeed, the character and size of the building, as indicated by the record, would «eem to render it plain that the employment of a skilled superintendent for its construction was reasonably necessary. We think that the surety company was as much bound to save the Standard Furniture House harmless from this claim as from the claims of other employees and materialmen, it being a lienable claim. 20 Am. & Eng. Ency. Law (2d ed.), 342.
We have noticed that liens were not actually filed by all "the claimants, and it is argued that the surety company was mot warranted in paying claimants who had not actually filed
It is contended that th. surety company ought not to be allowed to maintain this actio< because he did not file any ■claim against the estate with '■ : administrator before commencing the action. If the sv ety company was seeking to ■charge the estate generally with its claim, there would be merit in this contention, but since it is seeking only to enforce its lien against the mcrtg ¿god property which was expressly pledged to secure its claim, the failure on its part to file a claim with the administrator does not affect its right to foreclose the mortgage. Scammon v. Ward, 1 Wash. 179, 23 Pac. 439.
It is contended that the evidence does not support the ■court’s finding as to the amount and validity of the claims paid by the surety company. In this connection some contention is made against the good faith of the administrator, and also against Plutter, the superintendent, it being claimed that the building cost more than it would have cost by proper management in its construction. We have carefully read all of the evidence and conclude it was sufficient to justify the court’s findings in the particulars complained of; nor do we find anything in the evidence which would warrant the conclusion that the surety company was in any way responsible for any excessive cost of the building, necessitating its payment of these claims.
We are of the opinion that the judgment should be affirmed, and it is so ordered.