108 Wash. 616 | Wash. | 1919
In June, 1915, the appellant entered into a contract with Snohomish county for the construction of a system of drainage, etc., and a concrete bridge with flood gates on the Munroe-Snohomish road in that county, and thereafter sublet the construction of the bridge and flood gates, including certain fills, to one J. B. Snyder. A surety company bond was taken from the subcontractor for the protection of appellant, and thereafter Snyder contracted with respondent to haul the material necessary to make the fills, which is now in controversy, on a yardage basis. As Snyder’s contract called for the completion of the work by December 1, 1915, and to avoid the expense
“Mr. Wright was present at the time Mr. Niles asked me where I was going. I told him I was going to send the trucks home. He said, ‘come back and talk with Mr. Wright.’ Wright asked me what I wanted. I told him Mr. Snyder had hard luck on that fill, and I could not see where our money was going to come from, and refused to do any further hauling until I was assured where our money was going to come from. Mr. Wright then said to me, ‘you go ahead and make this fill and I will see that you are paid.’ ‘Very well,’ I said, ‘I will haul for this job,’ and he said, ‘I guess I will have to pay all the bills anyhow.’ I said ‘all right, Mr. Wright, we will haul for you, one yard for you or a million yards.’ I waived my hands to the truck and said ‘go ahead and finish the job,’ and I left. ’’
Thereafter the respondent hauled the total yardage required. Snyder abandoned the contract on January 4, 1916. Thereupon the appellant proceeded to complete the work, and, after doing so, brought suit against the bonding company which was surety on Snyder’s bond, setting up. as a part of his claim the
Upon the trial of the suit upon the bond, the court found that respondent did not file any notice, as required by statute, with the county commissioners, or give any notice of claim under the bond, and that appellant’s promise to pay was a collateral one and void under the statute of frauds, and allowed only the items which accrued in February, 1916, after Snyder had abandoned the work. Upon the collection of the judgment from the bonding company, the appellant paid the respondent the amount of his recovery on these items, which was credited on account only, and this action was brought to recover the balance.
Appellant defended upon two grounds: first, the statute of frauds; and second, that the judgment in the suit on the bond was binding upon the respondent, and the matter is now res judicata. From the judgment against him, appellant brings this case here on appeal, and by proper assignments of error raised the defenses relied upon by him in the trial court.
To determine whether a given state of facts constituting an agreement comes within the statute of frauds, the court must consider all of the evidence and
As so modified by the cross-examination, the testimony on behalf of respondent is in exact harmony with that given by Mr. Wright in his own behalf, to the effect that respondent’s contract was with Snyder; that Snyder was still in charge of the work; that the deliveries were made to Snyder after the conversation referred to, as well as before, and that as he felt fully protected by the bond, he would arrange to see respondent paid. There being no substantial conflict in the testimony, the question as to whether the promise was a collateral one to answer for the debt or default of another, or an original one to pay a debt of promisor, is one of law. We feel constrained to hold that the agreement, viewed from the standpoint of either party, falls within the statute, as each clearly then intended that the work should continue in the future, as in the past, to be done for Snyder upon the
The judgment is reversed; with directions to dismiss the action.
Holcomb, C. J., Mount, Fullerton, and Bridges, JJ., concur.