53 Wash. 290 | Wash. | 1909
The respondents let a contract to defendant Duff, to erect an apartment house in Tacoma for the agreed consideration of $11,628, which contract required a bond for the performance of the contract in the sum of $2,500, which was executed with appellant as surety. The contract and bond are both made a part of the complaint and are exhibits in the case. The contractor Duff permitted bills to go unpaid for materials and labor, and liens were filed, part of which were foreclosed; so that, after allowing the full amount of the contract price, there was still due $3,642.64. Actions were commenced to foreclose the liens above mentioned and, upon the commencement of the action, defendant Duff and the Empire State Surety Company were notified of the pendency thereof and requested and required to defend the same. But the defendants failed to defend said cause, and plaintiffs were obliged to, and did, defend the same, and such proceedings were had that judgment was rendered against the plaintiffs in the sum of $2,650, and the property was ordered sold. The complaint alleges certain expenses, including attorney’s fees and other expenses incident to the suit, and this suit was brought to recover against the appellant the sum of $2,500, the amount it was liable for on the bond. Demurrer was filed to the complaint, which was overruled. The cause was tried, and judgment was rendered as prayed for.
Exceptions are taken to many of the findings of fact, but from an examination of the record, we conclude that the findings were justified by the testimony in the case. So that there is practically nothing left but the questions of law in
So far as the question of notice is concerned, this case falls within the decision in the cases of Dewny v. Spurr, 38 Wash. 347, 80 Pac. 541; Ovington v. Aetna Indemnity Co., 36 Wash. 473, 78 Pac. 1021, and Heffernan v. United States Fidelity $ Guaranty Co., 37 Wash. 477, 79 Pac. 1095. It is conceded by the appellant that these cases are controlling if adhered to, but it is urged that they do not state the law and should therefore be overruled. We are not convinced from any argument presented that the rule announced in the causes referred to should not be adhered to. The question raised with reference to the commencement of the action is also stare decisis in this state. Friend v. Ralston, 35 Wash. 422, 77 Pac. 794; Beebe v. Redward, 35 Wash. 615, 77 Pac. 1052; Ovington v. Aetna Indemnity Co., supra. The doctrine announced in those cases is too well established to be longer questioned.
There is also a contention that there was a secret understanding between Duff and respondents, which made a different liability from that assumed by appellant; that therefore a fraud was practiced against appellant that released it from its obligation, viz: that the respondents had made arrange
There is also a suggestion that the respondents had violated the contract by not making a payment of some $286 to the contractor at the time it was due. But there is nothing in the testimony to show that the certificate was ever presented for payment, or that the want of payment was the cause in any manner or in any degree of the failure of the contractor to finish the building according to the agreement. The testimony, however, on the other hand, shows that Duff, the contractor, did not even know that this payment had not been made until after he abandoned the contract.
The complaint states a cause of action. The appellant entirely failed to show that it had been injured in any respect whatever by any action of the respondents, and the judgment is therefore affirmed.
All Concur.