33 Wash. 47 | Wash. | 1903
This is an appeal from a final judgment for plaintiff in an action on a bond given to plaintiff, the contractor in chief for the construction of subdivision No. 1 of the Cedar River water supply system of the city of Seattle, by the defendant Charles P. Church, a subcontractor for the performance of the excavation on a certain part of that subdivision, and by the defendant, the United States Fidelity & Guaranty Company, as his surety, conditioned for the faithful performance of his contract, etc. The defendant Church was never served with process, nor has he appeared in the action, and the judgment appealed from runs only against his surety, the appellant.
After completing the work, the respondent, by leave of the court, filed an amended and supplemental complaint, setting up the performance of the work by respondent, and the' cost thereof. The amended and supplemental complaint alleges the facts set forth in the original complaint, and the additional facts that the contract work had been completed, that respondent had been compelled to pay out for such work the sum of $21,003.59, which was the reasonable cost of completing the contract, and that all of
This judgment is appealed from, and the following errors assigned: (1) Error in overruling appellant’s demurrer to the complaint; (2) in granting the plaintiff leave to file the amended and supplemental complaint, and in overruling appellant’s demurrer thereto; (3) in overruling'the appellant’s objection to evidence of the new matter pleaded in the amended and supplemental complaint; (4) in overruling the appellant’s objection to any evidence for the plaintiff on the ground of defect of parties defendant; (5) in admitting in evidence the bonds given by the plaintiff to the city of Seattle in connection with the contract in chief between the plaintiff and the city; (6) in admitting in evidence certain sections of the general clauses appended to the contract in chief; (7) in admitting sundry insufficient and incompetent evidence to prove the plaintiff’s expenditures in completing the work
Concerning the first assignment, we think the liability of the defendants upon the bond was well established in the original complaint. It is possible that, in response to a motion to make more definite and certain, the cause of action might have been stated with a little more particularity, but the whole complaint sets forth the contract and the bond. The arrangement in which they appeared in the complaint could not be material. Under the provisions of the bond it was Church’s duty to faithfully perform his contract and to pay the claims of any person against the respondent or himself, caused by any wrongful acts of either omission or commission on his part, in relation to the contract, and to save the respondent harmless from any loss in that regard. It is alleged in the complaint that Church had incurred indebtedness in the prosecution of the work under the contract, that he had not paid the claims growing out of such indebtedness, but that respondent had been compelled to pay them, and that he had refused, upon demand, to reimburse respondent. We think the complaint contains a plain and concise statement of facts, and that the appellant was not left in doubt as to the cause of the action. The demurrer to the complaint was, therefore, properly overruled.
“But where the complainant sets forth in his original bill a title which is sufficient to entitle him to the relief prayed, it is permissible to file a supplemental hill setting up a newly acquired interest which enlarges his rights and authorizes the court to give him greater and more extended relief.”
The claim for damages was in time, and the supplemental complaint properly sustained.
The fifth contention is that the court erred in admitting in evidence, over appellant’s objection, bonds given by the respondent to the city of Seattle. The bonds were given under the statute requiring a municipal corporation contracting for public works to exact of the contractor a bond conditioned to pay laborers, materialmen, etc., and all indebtedness incurred in the performance of the work, and the statute provides that the bond shall run to the state of Washington. The respondent, to sustain its contention that it was bound to pay certain labor and supply claims, introduced a bond which, it is conceded, met the requirements of the law with the exception that it ran to the city of Seattle as obligee instead of to the state
We also think that the general clauses appended to the contract were part of the subcontract in suit, and were properly admitted in evidence. The contract is too long to be set forth in this opinion; but, so far as the changes in the contract of which appellant complains are concerned, the contract provides that the Cedar River water supply system shall be constructed according to the maps and profiles prescribed by the city engineer, and in accordance with the plans and specifications required by the contract entered into between the Pacific Bridge Company and the city of Seattle, with certain exceptions specified; while such specifications provide, among other things, in language comprehensive enough to embrace the changes complained of, that the city engineer shall have the right to make changes. The merits of this controversy, viz., the contention that the guaranty company stánds discharged of its liability by reason of the departure of the respondent and the subcontractor, Church, raise a question lately passed upon by this court in Cowles v. United States Fidelity & Guaranty Company, 32 Wash. 120, 72 Pac. 1032, where, after a review of the authorities, it was held that the assurance company could not invoke the doctrine of strictissimi juris in the construction of its contract, and that bonds of this character were in their nature insurance contracts and should be
Without specifically reviewing the evidence admitted to prove and support different claims, we think it was competent and sufficient, and that, therefore, the court did not commit error in denying appellant’s motion for a nonsuit. ISTor do we think there was any reversible error in the exclusion of testimony, in denying appellant’s motion for a new trial, or in entering judgment for the respondent.
The judgment is therefore affirmed.
Eulleeton, O. J., and Anders, Hadley, and Mount, JJ., concur.