14 Wash. 630 | Wash. | 1896
The opinion of the court was delivered by
This was an action to foreclose a lien for materials sold by appellant to defendant Grant, as
“ The condition of this obligation is such that if the said T. L. Grant shall erect, finish and complete all the mason work, carpenter and joiner work, tin work, iron work, painting and glazing for a three-story frame building designed for a hotel to be erected in the City of Everett, Washington, and according to plans and specifications, and complete the work in a good, substantial and workmanlike manner, and furnish all materials, then this obligation shall be void; otherwise it shall be and remain in full force and virtue;”
and that by reason thereof appellant was not entitled to a lien upon the building and was also liable to the respondent for a sum expended for materials by it to complete the building, the contractor having failed so to do; and asked for a judgment for such sum.
The appellant resisted the matters set up in said defense on three grounds: It denied that it had any authority to become a surety; claimed that it was released from liability by reason of an alteration in the specifications made after the bond was executed, which provided for an addition to the hotel; and it further contended that the provision in the bond that the contractor was to furnish the materials for the building did not mean or provide that the contractor should pay for them.
The court found that appellant was entitled to a
As to the claim that appellant had no authority to become a surety upon the bond, it is conceded that there was no statute prohibiting it. from so doing, and the contention is based upon a want of power to do so under its articles of incorporation. Said articles provided that appellant should be authorized:
“ To carry on the manufacture and sale of lumber in its various forms, including sash, doors, blinds and kindred work, furniture and wooden ware, sawing and planing lumber and everything connected with the manufacture and sale of lumber, and to purchase and sell timber and timber lands, and to do anything and all kinds of business allowed to corporations, as provided for under the laws of Washington Territory.” ■
It was proved upon the trial that it was customary for manufacturers of lumber upon Puget Sound to go upon the bonds of contractors in ■ order to sell them the material which they should require for the construction of buildings, and in this case that appellant was enabled to sell its material to the contractor only by becoming a surety for him upon the bond in question, the contractor having -refused to purchase such material of appellant except upon that condition. As against this appellant contends that the proof did not show that it was customary for corporations engaged in the manufacture and sale of lumber and building material to become such sureties. But this did not
■ It is further contended that there was no direct authority shown by any resolution of the board of trustees authorizing appellant to execute this bond, but it appears that a majority of the trustees were in consultation about it prior to its execution and consented thereto, and if the doctrine of ultra■ vires will not avail appellant in this instance, it should not be allowed to successfully resist upon the ground of a want of formality in the execution of the bond, and this last contention could amount to no more than this.
As to the next ground, it appears that after .the construction of the building had been entered upon the respondent desired to make an addition thereto, and entered into negotiations with the contractor therefor, and that the contractor submitted to appellant the specifications for such addition, and appellant agreed to furnish the contractor the necessary mill work for it, and thereby had full knowledge of it and consented thereto, and w.as benefited thereby in consequence of being enabled to sell a larger amount of material. Also, the specifications in existence when the bond was executed contained the following provision:
“ The company reserves the right to alter or modify the design, and to add to, or diminish from, the contract amount, and in case of any difference of expense, it is to be made in ratio or proportion such work may bear to the whole work agreed to be performed. Such change shall not invalidate or render void the contract.”
The last contention that the provision in the bond requiring the contractor to furnish the material did not mean to pay for it, and that therefore there had been no breach of the bond, is not well founded. The true meaning and intent of the provision was certainly that the contractor should pay for the material and not that he should simply supply it, and that the respondent should pay for it.
Affirmed.