71 Wash. 611 | Wash. | 1913
Action against the sureties upon the bond of the contractor, for the construction of a public library building at Anacortes. The sureties sought to evade liability because of the failure of respondent to give such notice as is required under Rem. & Bal. Code, § 1161. Findings and judgment went against the sureties, and they have appealed.
“Everett, Wash., March 12, 1910.
“Mrs. George B. Smith, Treas. Library Board,
Anacortes, Wash.
“Dear Madam: Your favor of March 11th has been received with enclosed as stated and have passed amount to the credit of A. M. Dilling on account of library. Enclosed herewith we hand you statement showing balance due of $1,098.20. We trust that you will favor us with an early remittance covering this amount as same is now due. Yours truly, Robinson Manufacturing Co.
“By C. D. Fratt, Sec’y.”
To this letter, Mrs. Smith replied, claiming an error in arriving at the balance due, upon the receipt of which respondent mailed its second letter, which is as follows:
“Everett, Wash., April 8, 1910.
“Mrs. George B. Smith, Treas. Library Board,
Anacortes, Wash.
“Dear Madam: Your favor of April 6th has been received. The statement as contained in your letter of March 14th showing balance of $858.50 on that account, is correct, and if you will send us that amount less freight expense bills we will hand you a receipt for the amount. Thanking you for a prompt response, we are, yours truly,
“Robinson Manufacturing Company,
“By C. D. Fratt, Sec’y.”
We have held that the giving of this statutory notice is a condition precedent to any action upon the contractor’s bond. Huggins v. Sutherland, 39 Wash. 552, 82 Pac. 112; Crane Co. v. Aetna Indemnity Co., 43 Wash. 516, 86 Pac. 849. It has also been said that, since the primary purpose of the statute is notice, it is not required that the statute be strictly complied with, but that any form of notice which informs the municipality and the sureties that unpaid bills are due and which does not mislead either the municipality or the sureties to their injury, is sufficient. Strandell v. Moran, 49 Wash. 533, 95 Pac. 1106; Cascade Lumber Co. v. Aetna Indemnity Co., 56 Wash. 503, 106 Pac. 158. This language, before it is accepted as authoritative, must be read in connection with the facts to which it was applied. In doing so, it will be seen that, in the Strandell case, notice was actually filed with the municipality that a claim was made against the bond and the sureties therein named; the only objection being that Freda Strandell, the claimant, was doing business as “A. Strandell, agent,” and the notice was signed “Andrew Strandell,” without adding the word “agent.” This signature, under the facts, was held sufficient. In the Cascade Lumber Co. case, notice was also given to both the municipality and the surety. The notice failed to state that a claim was made against the bond. In discussing this point, it was said:
“But they [notices] do say that the claimant has a bill against the high school building for materials furnished to the builders to be used in the building, and the amount thereof. The notices were addressed to the surety company,*614 and served upon it. These notices were the substance of the notice provided for by the statute. When it was addressed to and served upon the surety, that company must have known that the notice was given to them solely by reason of the bond, and that the claimants meant thereby to claim against the bond.”
Tested by this language it cannot be said that either one of these letters, or both of them combined, complied with, or attempted to comply with, the substance of the statutory notice. The utmost that can be claimed for them is that they inform the library board of the balance due from the contractor. There is no attempt to file a claim against either the building or the bond. The purpose is apparent— to request an early payment of the balance claimed from the library board- — without any reference to the bond or the obligations of the sureties thereunder. Respondent had in mind nothing more than the usual correspondence accompanying a bill for an unpaid balance. The letters contain no recognition of any statutory requirement, nor any attempt to comply therewith. To hold these letters sufficient as a notice would be to say that, whenever any creditor of a contractor upon public buildings writes a letter notifying the municipality of the amount due him for labor or materials furnished in the construction of such a building, a liability can, because thereof, be enforced against the sureties upon the contractor’s bond. The statute requires something more than this, and it cannot be held that its requirements have been substantially met, conceding that to be all that is required, until there has been an attempt in some form to recognize the demand of the statute and to obtain rights thereunder, which otherwise would not exist. We therefore hold that these letters cannot avail respondent as a compliance with our statute.
The next question is, was the meeting notice? The record discloses that four sureties, with their wives, signed the bond. Three of these sureties only were present at this
Mount, Fullerton, Ellis, and Main, JJ., concur.