36 Wash. 473 | Wash. | 1904
In May 1902 the respondents entered into a contract in writing with one B. Coiling, by the terms of which Colling agreed to furnish all of the necessary labor and material, and erect, for the respondents, a dwelling house, according to plans and specifications therein specially mentioned and described. The consideration for the construction of the building was $3,300. The contract also provided that Colling should furnish a bond in the sum of $2,000, to secure the faithful performance of the contract on his part. Following out this requirement of the contract, the contractor procured the appellant to become his surety, paying it therefor a cash consideration called a premium. The bond given recited, in general terms, the execution of the contract between the respondent and Colling, and contained a general condition to the effect that it was to be void in case Colling should well, truly, and faithfully comply with such conditions, otherwise to remain in full force and effect. The general condition, however, was subject to a number of provisos, among which were the following:
“Provided, that the said surety shall be notified in writing of any act on the part of the said principal, his agent or employees, which may involve a loss for which said surety is responsible hereunder, immediately after the occurrence of such act shall have come to the knowledge of the fully authorized representative or representatives of George H. Ovington and wife who shall have the super*475 vision of the completion of said contract/ and a registered letter mailed to the office of Clemens & O’Bryan, Manager of the Aetna Indemnity Company, at Portland, Oregon, shall he deemed sufficient notice within the meaning of this bond. . . . And Provided further: that any suit at law or proceedings in equity brought against this bond to recover any claim hereunder, must be instituted within six months after the first breach of said contract”
By the terms of the contract the dwelling was to have been completed within 120 days from the 12th day of May, 1902. It was in fact completed about the 1st of December of that year. Shortly after its completion, numerous liens were filed against the building and the land on which it was situate, by laborers and material-men, to secure themselves for labor and material furnished the contractor, and used in the construction of the building. Some of these liens were afterwards prosecuted to judgment, and became fixed charges against the respondents’ property. The respondents thereupon instituted this action against the appellant to recover the amount of such liens, and afterwards recovered a judgment for the sum of $1,865.11. This appeal is from that judgment.
It appears from the evidence, and the trial court found, that as early as September, following the execution of the contract, the respondents were notified by two persons who had performed labor on the building that their wages for such services, amounting to some $25 each, had not been paid by the contractor. The respondents did not notify the bond company of this fact, and it is contended by the company now that this prevented a recovery on the bond, because being a breach of that condition providing that notice should be given it of any act on the part of the contractor which might involve a loss for which it, as surety, was responsible under the terms of the bond. It seems to us, however, that this cannot be the meaning of
The appellant next complains that the action was not commenced in time, because not commenced within six months of the time the contractor agreed to complete the building, but this question was met and determined adversely to this contention in the case of Beebe v. Redward, 35 Wash. 615, 77 Pac. 1052, and reference is made to that case for the reasons upon which the conclusion is rested.
The appellant next complains that the trial court erred in refusing to permit him to show that changes were made in the original plans of the building, as the work progressed, entailing an additional cost to the contractor of some $400, but we find no -error in this. The contract itself providéd in terms that such changes might be made, and of course the possibility of such changes must have been in the contemplation of the surety at the time it entered into the bond. The fact that the unpaid obligations of the contractor may have been increased because of such changes does not affect the case, as increase of costs was as much contemplated and provided for by the contract as were decreases in the cost of construction.
The judgment appealed from is affirmed.
Eadley, Mount, Anders, and Dunbar, JJ., concur.