4 Wash. 617 | Wash. | 1892
The opinion of the court was delivered by
Jacob Ralph, being the owner of certain real estate situated in the city of Tacoma, contracted with the Puget Sound Building Company, composed of John Anderson and Alexander Almquist, for the erection of certain buildings thereon, and W. P.Sundberg, H. Nyman, Peter Holmgren and Neis P. Olson joined in said contract as third parties, becoming responsible for the carrying out of the contract' by the said Puget Sound Building Company. Subsequently Wheeler, Osgood & Company, who furnished certain materials to said contractors, which were used in the construction of said buildings, filed a notice of lien upon the premises therefor, and brought an action to foreclose the same. Jacob Ralph filed an answer and cross complaint, alleging that he had no knowledge or information sufficient to form a belief as to the amount or value of said alleged materials, and for the purpose of placing said claim in issue he denied that any of said materials were purchased for or used in the construction of said houses, or any of them, and further denied that they were of the value stated in the complaint. There was no denial of the filing, or of the sufficiency, of the lien notice. In his cross complaint he set up the contract, and alleged that the defendants Anderson and Almquist thereby contracted to construct said houses according to certain plans and specifications, furnished byoneRobertson therefor, which houses were to be completed on the 20th day of June, 1890, in consideration of which he agreed to pay sixteen thousand
“The said W. P. Sundberg, H. Hyman, Peter Holmgren, Neis P. Olson, as parties of the third part, are held and firmly bound unto said Jacob Ralph, party of the first part, in the sum of six thousand dollars of good and lawful money of the United States, to be paid to said Jacob Ralph, his heirs, executors, administrators and assigns, which payment well and truly to be made, they bind themselves, their heirs, executors, administrators, and each of them, by these presents. The condition of this obligation is such that the above bounden Alexander Anderson and John Almquist, said parties of the second part, their heirs, executors and assigns, shall in all things stand to and perform the conditions, covenants and agreements mentioned and contained in the foregoing contract for the buildings this day entered into by and between them and the said Jacob Ralph, to be kept and performed at the time and in the manner and form therein specified, then this obligation shall be void; otherwise to remain in full force and effect.
Which obligation and bond was duly signed, executed and delivered by the defendants aforesaid.
He alleged that on the 16th day of February, 1890, he delivered possession of said real estate to said Anderson and Almquist, and provided the same in all respects ready for them to begin work on said day, which was the time fixed in the contract; and that he had at all times complied upon his part with the terms and conditions of said contract, and that he had paid to said Anderson and Almquist, or persons authorized by them to receive the same, all of said sums save and except the sum of $4,198.00, which remained unpaid, subject to the deduction hereinafter stated.
The defendants Anderson and Almquist, and Sundberg, Nyman, Holmgren and Olson, and Wheeler, Osgood & Co., filed answers to the said answer of Jacob Ralph and the cross bill therein contained. The answer of the defendants Anderson and Almquist admitted their indebtedness to the
The defendants Nyman, Olson, Sundberg and Holmgren answered, denjnng they had any knowledge or information sufficient to form a belief as to the claims of Wheeler, Osgood & Co. and the St. Paul & Tacoma Lumber Company, and therefore denied the same, but admitted having entered into a contract with Jacob Ralph as set out in his complaint, but alleged they had no knowledge or information sufficient to form a belief as to any of the other allegations therein contained, and therefore denied the same, and for a further defense and counter claim as against said Jacob Ralph, said defendants alleged that the contract set out in said cross complaint was a changed and different contract from that originally entered into between said Ralph and Anderson and Almquist and themselves, and that said contract was so changed without any notification to them as bondsmen, and that the changes in said contract were so great and varied that the contractors could not perform the conditions and have said buildings ready on the 20th of June as specified in the original contract, and that all the damages that may have resulted to the plaintiff were caused by said changes, and not through any fault or negligence of the contractors. And alleged that said Ralph had not sustained any damage from any failure of the contractors to perform the conditions of the contract, and that in consequence of such changes and alterations, the contract described as having been executed by said parties had been abrogated as to them, the bondsmen, and that they were not in any way bound thereby.
The other lien claimants appeared and filed complaints setting out their claims, on which issue was tendered by said Ralph and by the other defendants, Anderson, Aim
The causes were thereupon consolidated, without objection, and referred to the court commissioner for trial. He took the testimony and made findings thereon and reported the same to the court, and a decree was rendered in favor of the lien claimants. Whereupon Ralph, Anderson and Almquist, Nyman, Holmgren, Olson and Sundberg gave notice of an appeal to this court.
At the hearing before the commissioner the matters in contest seem to have been between Ralph and the bondsmen upon his contract with Anderson and Almquist, as to whether the claims of the respective parties seeking to obtain pay for material and labor furnished as aforesaid were to be paid by Ralph, or as to whether in default of their recovering the same from the contractors, Anderson and Almquist, the same should be paid by the bondsmen aforesaid. Furthermore, as to whether the contract had been complied with by said Anderson and Almquist, and as to whether the original contract which was executed by the bondsmen had been so materially altered without their consent'as to release them. No substantial contest seems to have been made as to the claims of the respective parties asserting the liens.
A number of points are urged here which are as follows: That the court allowed in each of said lien claims attorney’s fees without any proof having been introduced either before the commissioner or before the court, as to the value of such services. A number of objections are made to the lien notices in that the same do not sufficiently describe the
After the cause had been referred to the commissioner, the defendants, Holmgren, Sundberg, Nyman, Olson, Anderson and Almquist demanded a trial by jury, which was denied by the court, and they allege the court erred thereby.
Further objections are made that the cause was referred to the commissioner before the issues were made up, and that the commissioner proceeded to take testimony as to matters of fact that were not at issue, and that he found and reported the facts before the testimony was all taken. The record shows that the issues were settled some days before any testimony was taken, and it does not appear that the commissioner found or reported his findings of fact prior to the completion of the taking of the testimony, at least as far as the issues settled by the decree are involved. No objections were made by appellants to the commissioner’s report for two months or more after the same was made and filed, and for a considerable time after the respondents had moved for an affirmation of the report and
As to the objections raised regarding the rendition of judgment for attorneys’ fees without proof of the value of the services or the reasonableness of said fees, and as to the sufficiency of the lien notices and lien claims, it seems to us that these questions were not raised on the trial of the action in the lower court. These lien notices were all admitted in evidence without any objection to them whatever. Respondent insists that in consequence thereof the appellants should be precluded from raising such questions on appeal. All technical objections to proof should certainly be made when it is offered, and if not so made the same will be waived. There is no doubt but that in this case any objections going to the verification of the different lien notices — and some objection was made thereto in the objections to the report — and all objections going to their execution would be waived by a failure to object at the time they were offered in evidence. And we think that where a written instrument is offered in evidence for a certain specific purpose, such as a lien notice, for the purpose of establishing the lien, all questions going to the sufficiency of the notice should also be raised at the time of its offer, otherwise the party offering the same might be misled to his prejudice, and not put in any further available proof upon the subject. It is possible other lien notices for the same claim may have been filed by the same claimants within the time allowed, or it may be the owner or defendant previously waived all objection to the lien notice, or put himself in such a position he would be estopped from objecting thereto or to the sufficiency thereof. He may have previously expressly agreed so as to bind himself that the liens were valid and subsisting ones, and the lien claimants would not be called upon to put in this additional
We think this should be the rule in all cases, but there are additional grounds in this case for holding the appellants precluded from raising these questions, and this includes the point raised as to attorney’s fees. When the case came on for hearing in the superior court on the report of the commissioner, and when the appellants first made these objections to the lien notices, it was claimed by the parties assertingthe liens that all objections thereto had been expressly waived upon the hearing before the commissioner, and that the parties had stipulated before the commissioner that the court should render judgment for the attorney’s fees. Whereupon the court made an order directing said commissioner to make a further reportaste such stipulations entered into and acted upon during the hearing before him which were not included in the original report, and the commissioner did make a further report wherein he states that on the 18th day of November, all parties being in court, excepting Ralph,' it was stipulated and agreed in open court that the several original notices of liens, with the respective indorsements thereon of the auditor of Pierce county as to the time and place of record, respectively, were to be admitted asevidence without formal proof of their filing and record in the auditor’s office, and in lieu of certified copies of the same. That it was also further stipulated in like manner that the attorney fee in each case should be fixed by the eourt, and no proof as to what were reasonable attorney’s fees were taken before the commissioner for that reason. Said commissioner further certified that he had notified one of the attorneys of Ralph of the hearing to be had before him on said 18th day of November, when said stipulations were entered into, and that said attorney notified him that he did not care to be present to contest or oppose any of the claims or liens with the ex
It seems to us that here was an express waiver of any question or objection going to the sufficiency of these liens by all of the appellants, and also of the taxation of the attorney’s fees. It cannot be contended that these stipulations, were only for the purpose of admitting the original notices without requiring certified copies or proof of their execution, and of their being filed for record because such attorneys further stipulated that attorneys fees might be fixed by the court, and the only foundation upon which judgment could be rendered for an attorney’s fee in the action was in case the liens were established. If the liens
The appellants object to this further report on the ground that it was incompetent, irrelevant, and frivolous, and that the commissioner had no right to make the same. We think it was permissible. If there had been only a partial report originally, it was within the power of the superior court to order the commissioner to make a further report of what took place before him, and he certainly could return any fact involving a waiver expressly made by the parties, or a stipulation entered into between'tliem before him, as well as he could return the testimony which was taken. Furthermore the truthfulness of this report is not attacked in any way; no question is made that it was not in accordance with the facts.
This disposes of the question as to the attorney’s fees, and of all objections to the lien notices, including the point raised as to the Turner and Erickson notice, that it only specified one Segerstrom as the person to whom said materials were furnished, without naming the original contractors, Anderson and Almquist; and as to the further ground that it did not specify the particular house for which the materials were furnished. It appears that one contract was made for the erection of these nine houses upon contiguous lots between the same owner and the same con-tractors, Anderson and Almquist; and being the same owner, the same contractors, and the work being done under the same contract, and there being no intervening rights of any third parties, and it appearing that the materials
The objection that the value of the materials was not proven was not raised, even if it would have availed the appellants anything, if properly taken. These lien notices stated the amounts due, the respective claimants, and in each instance the contract price for the material and labor was proven without objection. Certainly the appellants now cannot be allowed to say there should have been proof of value in addition to this.
As to the question that the defendants, or some of them, were entitled to a jury trial, it appears that the causes were consolidated and referred to a commissioner to take proof without objection by anyone at the time. The actions to foreclose the liens were triable in equity, and it is a well settled principle of law that a court of equity having obtained jurisdiction of a cause retains it fox all purposes, and as to whether a jury trial is to be allowed of any questions of fact involved in such actions is a matter entirely within the discretion of the court, and no error could be founded upon its refusal to grant one in this instance.
A further claim is made by the appellants that a portion of said cause, relating to the issue raised between Ralph and Olson, Sundberg, Nyman and Holmgren as to their liability upon the contract to pay the claims of the lién claimants, is yet pending before the commissioner, and that testimony has been taken before him in regard thereto which has not been reported or passed upon. Appellants state that the superior court, notwithstanding its former order consolidating the causes, ordered an issue to be made up between the owner Ralph and the contractors aforesaid. Our attention has not been called to any such order in the voluminous record brought here, and we have not been able to discover any. Nor is there any intimation in the record that that issue, or any issue involved in said cause, was left
It seems to us the appellants practically abandoned the case here as contested in the lower court, and undertake to make a new one on appeal, which would result in grea injustice to the respondents if the questions they now urge should be held as before the court under all the circumstances.
The judgment of the superior court is affirmed.
Anders, C. J., and Stiles and Dunbar, JJ., concur.
Hoyt, J., concurs in the result.