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the attorney was employed, from the time HOYT, C. J. This action was brought to of giving notice of the lien to that party. recover for loss of property covered by an (4) Upon a judgment to the extent of the insurance policy issued by the defendant. value of any services performed by him in There was a clause in the policy which prothe action, or if the services were rendered vided that no action could be maintained under a special agreement, for the sum due thereon unless commenced within six under such agreement, from the time of fil- months from the date of the fire. On acing notice of such lien or claim with the count of this provision, and of the fact that clerk of the court in which such judgment suit was not commenced until more than is entered, which notice must be filed with six months from the date of the fire, it is the papers in the action in which such judg-claimed by the appellant that the action ment was rendered, and an entry made in cannot be maintained, and upon that claim the execution docket, showing name of alone it seeks to have the judgment renderclaimant, amount claimed, and date of oil. ed in the court below reversed. Upon the ing notice.” It is apparent from an exam- trial it appeared from testimony which was ination of the affidavits that the plaintiff and practically undisputed that soon after the respondent has been guilty of bad faith in fire an adjuster of the defendant visited Tahis dealings with the attorneys here seek- coma, where the property burned had been ing to enforce their liens, and, if we could situated, for the purpose of adjusting the find it within the power of the court to loss; that, pursuant to his directions, proofs grant this application, we would most will- of loss in attempted compliance with the ingly do so. An examination of the ques- terms of the policy were furnished the comtion, however, leads us to conclude that it pany; that soon after their receipt a letter was the right of the judgment debtor to pay was written by the adjuster to the plaintiff, the amount of such judgment into court, to informing him that the proofs of loss were be thereafter disbursed to the proper par- defective, and calling attention to the terms ties entitled thereto, and that such payment of the policy for his direction in furnishing completely and fully discharged all the ob- further proofs; that thereafter, and about ligations which such judgment created the 1st of October, further proofs were furagainst him. Had the moving parties filed nished to the satisfaction of the company; and perfected their liens with the clerk of that after that time the adjuster, in reply this court, there would be no occasion for to a letter from plaintiff, stated that he would the present proceeding. Having failed to do be in Tacoma some time in November, and so, we are of the opinion that the application would then take up the matter of further must be denied.

adjusting the loss in question; that he went

to Tacoma at or about the time stated, and HOYT, C. J., and DUNBAR and SCOTT, there met the plaintiff; that during the inJJ., concur.

terview which followed propositions of settlement were made, as to the exact terms of

which there is some conflict in the testi(11 Wash, 181)

mony; that no further action was taken in DAVID v. OAKLAND HOME INS. CO. the premises until some time in March, (Supreme Court of Washington. Feb. 14, when the plaintiff visited the office of the 1895.)

adjuster in the city of Portland, Or., when, ACTION ON POLICY-WAIVER.

for the first time, he was informed by the In an action on a policy conditioned on adjuster that the company was not liable suit in case of loss within six months after the for the foss; that the most it would do fire, it appeared that, after the fire, defendant's adjuster visited plaintiff; that, pursuant to his

would be to return the premium which had directions, proofs of loss were served on the com- been paid for the insurance. It further appany; that, on notice of defects therein, addi- peared from the undisputed proofs that such tional proofs were served; that plaintiff was

adjuster was fully authorized to represent notified that the adjuster would again call; that plaintiff's offers for a settlement were rejected;

the company in all matters connected with and that no specific offer was made by defend- the adjustment of the loss in question. It ant, but he was led to believe that there had

was not made to appear that at any of the been no final decision until after the six months

interviews prior to the one in the month had elapsed, when defendant denied all liability. Held, that defendant, by its actions,

of March there had been any definite waived the condition as to suit in six months, proposition made to the plaintiff by or on and plaintiff had a reasonable time after the

behalf of the company. It did appear that denial of liability to commence the suit. Anders, J., dissenting.

the definite propositions made by plaintiff

had been rejected by the company, but, Appeal from superior court, Pierce county; prior to the interview in March, above reJohn C. Stallcup, Judge.

ferred to, such rejections had been accomAction by Thomas David against the Oak

panied by such statements and actions as land Home Insurance Company. From a

to induce the plaintiff to believe that there judgment for plaintiff, defendant appeals.

had been no final decision in regard to the Affirmed.

adjustment of the loss. Did these interSharpstein & Blattzer, for appellant. W. views, and the action of the company in W. Likens, for respondent.

relation to the loss, warrant the respondent in believing It was its intention to waive the effect that, unless they found that there condition in the policy upon which it now had been a rejection of the claim prior to plants itself? The company contends that the date of the interview in Portland, iD there were no facts shown by the proofs the month of March, the plaintiff could re which would amount to a waiver of the cover. The judgment must be affirmed. condition, or even tend to show such waiver.

SCOTT and GORDON, JJ., concur. In determining the question thus presented it must be borne in inind that the in

DUNBAR, J. I concur in the result; but sured and the insurer, in cases like the one

on the ground that construing all the prounder consideration, do not stand upon an

visions of the contract together the statute equal footing. The insurer is always rep

of limitations had not commenced to run resented by persons of experience in such

at the time the action was commenced. matters, while the insured is usually a man of much less general information, with lit

ANDERS, J. (dissenting). I see nothing tle or no knowledge in relation to insurance

in the record in this case that convinces mo matters. Such being the relation of the

that the agent of the insurance company parties, good conscience requires that there

ever said or did anything in regard to the should be no attempt to overreach the insured by the insurer. It does not follow

loss in question which either the respondent

or the court had a right to construe as a that the terms of insurance contracts can be

waiver of any right the company had unset aside or disregarded. Such contracts,

der its contract as set forth in the policy, like all others, must be presumed to have

and about which there is no dispute. I been entered into by both parties with their

therefore respectfully dissent. eyes open, and the conditions to which they have assented must be enforced in contracts of this kind the same as in any other. But

(11 Wash. 176) it does follow from the relation of the par

LIBBEY V. PACKWOOD. ties to each other that courts will require the (Supreme Court of Washington. Feb. 14, utmost frankness on the part of those rep

1895.) resenting the insurer in their dealings with

CONTRACTS, ACCEPTANCE OF OFFER-EFFECT OF the insured. In the case at bar the con

DELAY-SALE OF CORPORATE STOCK. ceded facts fail to show that the insured

Defendant contracted with certain stockat any time had any direct promise that holders of a corporation to cause to be returned the loss would be adjusted in the future,

to any stockholders all notes given by them for

stock on surrender by them of their stock, and and the whole, or any portion thereof, paid;

relinquishment of all claims against the corbut, in our opinion, it does appear from the poration. Plaintiff, who was a stockholder, undisputed testimony that at each time when but not a party to the agreement, at first was the offer of compromise on the part of the

told by defendant that he was not entitled to

the benefits of the agreement, but delayed for insured was rejected by the company such a year after he knew that he was entitled to rejection was made under such circumstan- its benefits, and after defendant had secured ces, and in such a manner, as to warrant

his notes, so that he could return them before

he sought to avail himself thereof. In the the plaintiff in believing that the matter

meantime the affairs of the corporation took was still open for further consideration and an unfavorable turn. Held, that plaintiff's fail. adjustment between the parties. So long

ure to elect within a reasonable time to ac as the insured was thus given the right to

cept the benefits of the agreement barred any

rights he might have had thereunder. Dunbar suppose that the question of adjustment was and Gordon, JJ., dissent. an open one, he had the right to assume

Appeal from superior court, Pierce county; that the condition of the policy as to the

John C. Stallcup, Judge. time for the commencement of an action

Action by A. Libbey against S. T. Packwood thereon had been waived by the company;

for the specific performance of a contract for and such waiver would continue until by some definite action on its part the company

the repayment of money paid under a pre

vious contract. Judgment for plaintiff, and had notified the insured of the rejection of

defendant appeals. Reversed. his claim, after which he would have a reasonable time in which to commence an ac

R. B. Lehman, B. F. Heuston, and T. W. tion upon the policy. There is no proof Hammond, for appellant. J. A. Williamson, tending to show that such notification was for respondent. given prior to the month of March, and this action, Instituted early in April, was brought SCOTT, J. The appeal in this case is based within a reasonable time thereafter. It fol- entirely upon questions of fact. In November, lows that the company was not in a situa. 1889, one Walters promoted and organized 8 tion to derive any benefit from the clause of town-site company, called the “East Tacoma the policy under consideration,

Improvement Company," for the purpose of What we have said disposes of the as

building a town to increase the value of certain signment of error founded upon an instruc- real estate in which he and others were inter. tion given to the jury. The undisputed ested. The parties to this suit, Walters, and proofs, as hereinbefore interpreted, war

1 For opinion on motion for judgment on cross rapted the instruction to the jury to the complaint, see 39 Pac. 617.

two others were the original subscribers. The cific performance of said contract of April, capital stock was $300,000, one-half of which 1890, and to recover back the $600 paid on was issued to the five original subscribers in the note as aforesaid. Judgment was renequal proportions, and the other half was re- dered for the plaintiff for this $600, and the served, with the expectation of selling it, and defendant appealed therefrom.

One of the contentions between the parties an original subscriber. For the purpose of dis- was as to whether the respondent was reposing of this stock so retained, a block of quired to surrender all of his stock, which $4,000 and 40 lots in said projected town were included the $30,000, as well as the $4,000, offered at $2,000, with the provision that notes under the contract, if he sought to avail himwould be taken from the purchasers for the self of it. Respondent contends that he was amount. The parties to this suit, Walters, only to surrender the $4,000 thereunder, · and a number of other persons availed them- while appellant contends that he was to surselves of this offer, became purchasers of render all of his stock; and it was proved stock and lots, and gave their notes to the that the other parties to the contract did company, or to Walters for the company; the surrender their entire stock thereunder. We two notes, for $1,000 each, involved in this regard this contention as immaterial, howaction, having been thus given by respondent ever, for it seems to us that the first point on November 6, 1889. On April 8, 1890, ap- made by appellant is well taken, and that pellant made a contract with three of the is that the respondent waived his right to stockholders of the company, one of whom come in under the contract, if he had any, was Walters, another one of the five original by failing to exercise it within a reasonable subscribers, and the other one who had come time. The proof shows that he delayed for in under the $4,000 block offer. By the con- about a year and a half before he sought to tract, appellant agreed to secure to the three avail himself of its provisions. Respondent persons what was practically a rescission of contends that he should be excused for this their acts and contracts in respect to the in- delay, because the appellant first represented corporation, viz. the three agreed to surrender to him that he had no right to come in unto appellant whatever rights and property der the contract; and, secondly, that the apthey had from the corporation, and appel- pellant was not in a position to comply therelant agreed to relieve them from further lia- with, because he did not have both of the bility. The contract also contained the fol- notes in his possession to turn over to the lowing clause, the East Tacoma Improve- respondent on the surrender of his stock. ment Company being one of the corporations And it is further contended that time was not referred to: "Third. I furthermore obligate of the essence of the contract, and that the myself to cause to be returned, to all or any delay of a year and a half ought not to bar a of the stockholders of either of the corpora- recovery, regardless of the reasons stated for tions herein first named, each and every prom- the delay. The proof shows, however, that issory note or notes executed by them in fa- for considerably more than a year after revor of either of said corporations upon their spondent was fully advised of his rights in surrender for cancellation of the shares of the premises, and after appellant had secured stock of either of said corporations held by the notes, and was in a position to surrender them, together with a relinquishment of all them upon a surrender of the stock, the reclaims in their behalf against said corpora-spondent remained inactive. Of course, it is tion for real estate or other values given or not contended that the respondent was bound agreed to be given them in consideration of to come in under the contract, he not being a the execution and delivery to said corpora- party thereto. At the most, he had simply tions, or either of them, of the said promis- the right to an election; and, to avail him. sory notes to be returned.” On May 15, 1890, self of this, he should have exercised it withrespondent paid $600 on one of the notes in a reasonable time. We are fully satisfied made by him as before stated, because, as from the proofs introduced that respondent respondent claims, he was informed by ap

did not at first intend to surrender his stock pellant that he was not included in the con- under the contract, thinking that the specutract, and therefore supposed he was obliged lation was likely to prove a profitable one;' to pay the note, and, as appellant claims, be- but after the delay aforesaid, and after the cause he had elected not to come in under affairs of the company had taken an unfathe contract, and therefore should pay up. vorable turn, he sought to secure the benefit On or about June 24, 1890, the respondent of its provisions. We think his action in the received a copy of the contract with a letter premises so clearly barred his right to a refrom one of the parties thereto other than covery that the finding of the lower court the appellant, advising him that he was in- cannot be sustained, and the judgment should cluded therein. On June 30, 1891, the re- be reversed. spondent transferred his $30,000 of stock to a third party. On December 4th, following, HOYT, C. J., and ANDERS, J., concur. this action was commenced to compel a spe

DUNBAR and GORDON, JJ., dissent.

(11 Wash. 161)

court committed error in sustaining the deEUREKA SANDSTONE CO. v. LONG et al.

murrers to this complaint. After stating

all the facts, the complaint alleges that said (Supreme Court of Washington. Feb. 14,

bond was delivered to the county commis1835.)

sioners of said county, with the knowledge Action Oy Bond --PRINCIPAL'S FAILURE TO EXE

and consent of the sureties. It also alleges CUTE-EFFECT--JOINDER OF PARTIES.

that Long procured and caused it to be ex1. The fact that the bond given by a con

ecuted, and at the time of the execution of tractor for the performance of his contract to build a public building is not signed by the con

the bond provided for by the statute it was tractor does not relieve the sureties thereon delivered by the defendants herein to said from liability. Hoyt, C. J., dissenting.

board of county commissioners as part and 2. Material men, in an action to recover for

parcel of said contract. It is also alleged in materials furnished a contractor for the erection of a public building, may join as defend

the complaint that the bond was duly filed ants the contractor and the sureties on his by the board of county commissioners on the bond, though it was not signed by the contract

19th day of September, 1890, and that on or. Hoyt, C. J., dissenting.

the 7th day of January, 1892, before the sale Appeal from superior court, Pierce county; and delivery of the stone mentioned in the W. H. Pritchard, Judge.

complaint, for the payment of which this Action by the Eureka Sandstone Company action is brought, the defendants, and each against J. T. Long and others to recover of them, together with the county commisthe purchase price of building material fur- sioners of Pierce county, for the purpose of nished. From orders sustaining demurrers modifying and changing the terms and conto the complaint, and from the judgment

ditions of the original contract and said thereupon entered, plaintiff appeals. Re- bond, entered into and delivered to the said versed.

county commissioners a certain other cori

tract in writing, a copy of which is attached Arthur N. Jordan, for appellant. Crow

to and made a part of the complaint; and ley, Sullivan & Grosscup, for respondents

that thereafter, with the knowledge and conLong and Addison. Parsons, Corell & Par

sent of the commissioners and these sureties, sons, for respondents Fife, Van Oglo, Ralph,

Long proceeded to complete and carry out Uhlman, Catron, Bringham, Mann, and Kel

his contract with the said county as modiley.

fied by this second contract. There is a di

rect conflict of authority on this question, DUNBAR, J. Respondent Long built a as, indeed, there is on almost every quescourthouse for Pierce county, which build- tion concerning the liability of sureties on a ing was accepted June 21, 1893. The coun- bond. The older cases, it seems, have held ty took from Long and his codefendants a closely to the rule that bonds are to be conbond under section 2415 of the General Stat- strued strictly in favor of the sureties; while utes. The bond was not signed by Long, this rule has been modified by later decibut was signed by all the other defendants, sions. This modification, it seems to us, is and was delivered to the county by Long, in accordance with common sense and the and by the county accepted. Appellant, the spirit of the age. A bond is nothing more Iureka Sandstone Company, furnished Long nor less than a contract, and the sureties to something over $16,000 worth of material, a bond are simply parties to a contract; which was used in the construction of this and we know of no reason why the same courthouse, and only a part of which has rules of construction should not be applied been paid for, and brought this action to a bond as to any other contract. It is against Long and his sureties to recover the true that the sureties may not be beneficiabalance due. Defendants demurred, and ries in any respect, and that it may be purethe demurrers were sustained. Plaintiff ly a matter of accommodation with them; stood upon its complaint, and judgment for but the bond was made to effect a certain defendants was entered on the demurrers. purpose. That purpose was to secure the This appeal is taken from the orders sus- obligees from loss in case of its violation; taining the demurrers and from the judg- and there is no reason why the law should ment entered.

make it more difficult for the obligee to obThe main fact upon which the demurrers tain redress in case of a violation of a bond were based and upon which the court de- than a party to any other contract. The cided the case below, and which is argued true inquiry should be, what was the mean. here by both respondents and appellant, is ing and intent of the contract? And when that the name of the defendant John T. that meaning and intent can be ascertained, Long, the contractor, was not signed to the the contract ought to be enforced.. While. bond. From this fact it was contended that as insisted by respondents, courts should not the complaint did not state a cause of action, presume to make contracts for individuals. and that there was a misjoinder of causes, neither should they allow them to escape reand a defect of parties defendant. After sponsibilities which they have voluntarily & somewhat extended investigation of the assumed, by 100 strained a construction or authorities governing the principles involved technical law. The allegation in this comin this case, we are of the opinion that the plaint is a broad one, viz. that this bond

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was delivered with the knowledge and con- by reason of its omission of the name of the sent of the sureties. If this be true,-and obligee; and as, with the case discussed, it for the purposes of this case it must be taken takes but a superficial examination of the to be true,—then the sureties waived any case at bar to lead one to the conclusion that formal or other objection that there might | in the execution of the bond in question by be to this bond; for, under the plain terms the sureties, and the acceptance thereo by of the allegation, they must have had knowl- he county commissioners, there was an inedge of the bond as it was delivered, and tention on the part of all to provide the seconsented to its delivery in that condition. curity required by the statute in the inter

It seems to us that the principle embodied ests of such as might thereafter, by virtue in this case was decided by this court in the thereof, become entitled to protection. The case of Ihrig v. Scott, 5 Wash. 584, 32 Pac. appellant in this case, relying upon this 466, where it was held that where a bond, bond, furnished this material to the con'executed by a contractor for the erection of tractor under the rule laid down in Ihrig a schoolhouse, by mistake named the board v. Scott, supra, and certainly ought to be of school directors instead of the state of protected. Washington as obligee, such defect was not State v. Bowman, 10 Ohio, 445, is a wellfatal if, from the terms of the bond, it ap- reasoned case, and in spite of the ingenious peared that its object was to secure laborers attempt by counsel for respondent to disand material men as provided for by the tinguish it from the case at bar, we think is law making provision for such bond. In exactly in point. The court in that case, in a that case this court said: “The simple fact, very learned opinion, after the citation by then, of the want of the proper obligee in this counsel of many of the cases which are cited bond is not fatal to it, if, from its terms, by respondents in support of their contention the object for which it is executed appears. here, squarely decided that where in a counEven a superficial examination will show ty treasurer's bond the name of the treasurer such to be the fact. No one can read the is recited in the body of it, but where he neibond in the light of the statute above re- ther signs nor seals it, his sureties who do exferred to without at once coming to the con- ecute it are liable. The statute in that case clusion that in executing it by the principal provided that the county treasurer, previous and sureties, and the acceptance thereof by to his entering upon the office, should give the proper officers of the school district, bond, with four or more freehold sureties, there was an intention on the part of all to etc., and it also provided that in case of deprovide the security required by said statute,

fault suit should be instituted against the in the interests of such as might thereafter treasurer and his sureties. "From which," by virtue thereof become entitled to pro- says the court, “it is argued that the statute tection. This would be the rule without the contemplates an execution by the principal aid of any curative statute; for while it as well as his sureties. I admit that it is the is true that under the old rules existing duty of the treasurer to execute the bond, and at common law much technical accuracy that the statute even supposes that he will was required in regard to instruments of do so. But I deny the proposition that, if it this nature, yet, even in the absence of any

is not done, the bond will be therefore void. statute, such rule has been by the decisions The bond may be procured; may, in the of the courts very much modified, and at words of the act, be given by the principal, this time courts look more to the substance although he did not sign or seal it. than to the form in determining as to wheth- The completeness of the bond, stricti juris, er or not such instruments shall have force.”. depends simply upon the fact whether it was And the court then proceeds to cite our

given by him. And that it was thus given, statutes, which provide that "no bond re- the indorsement on the back of the bond on quired by law, and intended as such bond, the very day on which the term of office comshall be void for want of form or substance, menced, on the very day when the bond recital, or condition; nor shall the principal should be given, of the oath of office by the or surety on such account be discharged, principal, affords, in the absence of any counbut all the parties thereto shall be held and tervailing testimony, the strongest possible bound to the full extent contemplated by presumption." The fact that the bond was the law requiring the same, to the amount given by the contractor in this case plainly specified in such bond." Code Proc. $ 800. appears from the allegations of the comCertainly the reasoning of the court in this plaint, and, if the completeness of the bond, case is applicable to the one at bar. In the stricti juris depends upon that fact, the decase discussed there was no obligee mention- murrers were certainly wrongfully sustained. ed, for the naming of the board of school | Again, the court, in answer to the argument directors, who could not, under the law, be used in the case above mentioned, viz. that obligees to the bond, amounted to no men- the sureties would be deprived of their rights tion at all. In the case at bar there is no against the principal if judgment should be signing by one of the obligors. Certainly obtained in this bond, says: “Great relithere can be no more reason why a bond ance is placed upon the fact that if the inshould be declared void and illegal by rea- strument is not executed by the principal it son of its nonexecution by the obligor than will affect the remedy over against him by

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