« ΠροηγούμενηΣυνέχεια »
the securities. There would be great force in Boom Co., 5 Wash. 614, 32 Pac. 737, and 33 this argument if the remedy were destroyed. | Pac. 1055, that a contract is signed, within But it is not. The force and extent of this lia- the meaning of the statute of frauds, when bility to them are unimpaired. Whether they the name of the party to be charged is writcould use the bond, per se, as evidence of his ten by him or an authorized agent anywhere liability, presents a question merely of con- in the contract. “It is a well-established venience in the use of the right, but does not rule of law," says the court, "that a contract affect the right itself any more than would is signed, withiu the meaning of the statute, the loss or destruction of the bond.” And so whether the name of the party to be charged with the case at bar. Unquestionably the appears at the bottom, top, middle, or side of sureties would have a right of action against the paper;" citing authorities. A review of the contractor for any damages which they the whole opinion in this case will show that sustained by reason of the violation of his the principle involved there is applicable contract. The court in the case above cited here, and that the instrument was held good quoted from the case of U. S. v. Linn, 15 Pet. because it was ratified by the parties who 290, where it was held that the instrument signed it, and by the parties who received on which the suit was brought was a writing it. It is true that the court proceeded not sealed by either the principal or his sure- to state that under the statute the party ties, and that, although it was not a bond, it who raised objection to the validity of the was a good contract between the parties.
contract would have been held responsible Another case which is exactly parallel with anyway for a portion of the damages, but a the case at bar is Cockrill v. Davie (Mont.) | portion, it will be seen, depended strictly up35 Pac. 958. There it was held that, where on the contract. And in the case at bar this the liability of the principal in a bond is fixed bond was not only ratified by the commisby contract, or by operation of law, his fail- sioners, but it was ratified and acknowl. ure to sign the bond does not affect the lia- edged, and its force and efficacy and purpose bility of his sureties thereon. This case in- especially acknowledged, two years after. volved the liability of a contractor who gave wards, when the sureties agreed to a change bonds for the faithful performance of his of the contract upon which the bond was contract. There the court, among other
based. things, said: “Appellant insists that the bond Nor do we think, with the respondents, in question is wholly void, because Davie, that it should necessarily appear from the named therein as principal, did not sign it complaint that the sureties were aware that along with the sureties. But, after much the principal had not signed the bond at the consideration of this subject and the authori- time of its ratification. Having given a bond ties, we cannot sustain that view. The same to comply with the provisions of the statute, obligation was fixed upon Davie by another and that bond having been delivered by their contract, and Renner and Cornelius (who agent, they must be presumed to have known were the sureties) undertook and promised | its conditions. It is conceded by the appelin writing to answer for the default of Davie lant that if this bond had anything on its in respect to his engagements by virtue of face to challenge the attention of the obli-' that contract, which the sureties described gees, it would fall within the rule announced in their bond. This bond was a collateral in- by this court in King Co. v. Ferry, 5. Wash. graftment on the contract, whereby those 536, 32 Pac. 538, but it is asserted that under sureties took upon themselves the burden of the rule announced there the scope of the answering for any default which Davie agency only went to the extent of the deliv. might make in respect to his obligation ery of the bond as agreed upon between the thereunder. As to such obligations, where sureties and the principal. In that case, in the liability of the principal is fixed by con- laying down the rule as to the liability of the tract or by operation of law, the sureties who sureties, which was a discussion really with guaranty the fulfillment of that obligation reference to instruments which had been cannot avoid their obligation because the changed after tbeir execution, this court principal did not sign the bond with them.” said: "Of course, if there is anything on In this case the same obligation was im- the face of the bond when it is delivered to posed upon Long by his direct contract with excite the suspicion of the obligee that the the county commissioners, and the sureties bond has been tampered with, or sufficient in this case undertook and promised to an- to put a prudent person on his guard, he swer for the faithful performance on his ought to be held bound to make an investipart of that contract, and the obligation and gation before accepting the bond. But to liabilities of the principal, Long, were fixed hold the obligee responsible where the bond by the contract which he had before made is good on its face, and where he has no nowith the county commissioners. It would tico until after the defalcation has occurred, require more genius than the writer of this is, in our judgment, not only wrong in prinopinion possesses to distinguish this case, ei- ciple, but is also opposed to the great weight ther in fact or principle, from the case at of authority.” It seems to us that the bond bar.
in this case does not fall within the rule As somewhat bearing on this proposition, laid down by the court in that case, or of any it was decided by this court in Tingley v. of the cases cited by the court therein. Here there have been no erasures or alterations of opinion. I fully indorse what is said therein this bond, which, on its face, would tend to as to the duty of courts to conform their put the obligees on their guard. It is true rulings to the condition of things existing that the name of the principal appears in at the time the decisions are made, even althe body of the bond, and does not appear though such rulings conflict in some degree among the signatures; but that is altogether with the weight of authority upon the suba different kind of a case from where one ject. I also fully concur in what is said about signature had been erased and another in- the duty of courts to look at substance, serted in such a way that it was easily dis- rather than form, in "he construction of concernible, or when a blue mark had been tracts of all kinds, including those of sureties drawn across the name of a signer, and in- in bonds and other written instruments. But stances of that kind, which would by casual I cannot agree with what is said as to the observation attract the attention of the obli- force to be given the allegations in the comgees. We think, even considering the case plaint to the effect that the bond in question from a standpoint of agency alone, that the was delivered to the officers of the county sureties would have no defense to this bond. by the defendants. All that could reasonably We are aware that on the main proposition, be inferred therefrom is that the instrument viz. the validity of the bond where the prin- came into the possession of the county, and cipal has not signed, there is conflict of au- that defendants had knowledge of that fact. thority, and we think it would be unprofita- It should not be inferred from such allegable to go into a review or a discussion of the tions that there was any consent on the part cases holding such bonds illegal. But the of the sureties that the bond should be decases we have cited appeal to our judgment livered before it had been made complete by as being consistent, and based upon fairness the signature of the person named therein as and right reasoning, and therefore we are principal. If only such inference can be inclined to follow them.
drawn from the allegations in the complaint, We do not think there is any merit in the no question of estoppel as against the surecontention of the respondents that there is a ties, or waiver by them of the right to have misjoinder of parties to this action. As was the bond signed by the principal, can be insaid by the Montana court in Cockrill v. voked to aid in determining the rights of the Davie, supra, the bond here was a collateral parties. It follows that the rignts of the ingraftment upon the contract which respond- sureties must be adjudicated in the light of ent Long had already given; and while the the presumption that they signed the instruevidence which would tend to sustain this
ment with the understanding that it should case against Long would differ from that
be signed by the principal before it should which would sustain it against the sureties, be of force against them; and also of the it being in one case the contract and in the
further fact that there was no privity beother the bond, the obligations of the par
tween the sureties and the plaintiff in the ties and the rights of the plaintiff are iden
action. At the time the sureties signed the tical. Under the bond and the contract it
instrument, the plaintiff was an entire stranis the primary duty of the defendants to pay
ger to the transaction, and for that reason for this material. The bond and the contract
no contract relation was created with it by are provided by statute for the express pur
such signing. It follows that the rights of pose of securing persons who furnish ma
the plaintiff were dependent entirely upon terial or labor; and the right of the plaintiff
the statute, and it can maintain no action in this case is the same as to all the defend
upon the instrument unless it is such as the ants, and the testimony can be as logically
statute required. and consistently brought out in one case as
Did the instrument in question so conform in two. It will be necessary, of course, for
to the requirements of the statute that it the plaintiff (appellant here) to establish the
should be held to be the bond thereby refact that it furnished the goods to Long, the
quired? Such' statute provides that the concontractor, and under what terms or condi
tractor should execute the bond with two or tions or contract they were furnished. After
more sureties, and it would seem plain that this is done, all that is necessary to effect
a bond executed by sureties alone would not the sureties' liability is to prove that they
come within its terms. But, even if a bond signed the bond which the law provides for
executed by another than the contractor as the enforcement or security of the contract entered into by the contractor. The judg- pliance with the statute, it does not follow
principal, with sureties, would be in comment will therefore be reversed, with instruc
that an instrument without any principal at tions to the lower court to overrule the demurrers to the complaint.
all would come within its provisions. The distinctions between bonds and other forms
of contracts are so well established that it SCOTT, ANDERS, and GORDON, JJ.,
is not proper for courts to disregard them unconcur.
til authorized so to do by proper legislation.
The statute requires that a bond should be HOYT, C. J. (dissenting). I am unable to given. It follows that an instrument which agree with all that is said in the foregoing does not possess the substantial features of
(11 Wash. 158) STATE ex rel. SMITH V. FORREST. Com
missioner. (Supreme Court of Washington. Feb. 14,
1895.) MANDAMUS TO COMMISSIONER OF PUBLIC LANDS
PLEADING. On application for mandamus to compel the commissioner of public lands to issue a certificate of purchase for certain tide lands to petitioner, the evidence upon which the refusal of the commissioner to issue the certificate was based must appear in the statement, to authorize an interference by the court.
Application for a writ of mandamus, upon the petition of A. J. Smith, against W. T. Forrest, commissioner of public lands. Proceedings dismissed.
Wickersham & Reid, for petitioner. James A. Haight, for respondent.
a bond does not come within its provisions. One of such essential features is a principal. There can be no bond without a principal to be bound thereby. The instrument under consideration was executed by sureties alone, hence it lacked one of the essential qualities of a bond. It follows that, even though the sureties be held to have waived the want of the signature of the principal, the instrument was so lacking in the essentials of a bond that the statute could not be invoked to aid in the assertion of rights thereunder. But, in my opinion, no such waiver was shown. There could be no waiver or estoppel by the sureties which could have force in favor of the plaintiff, unless the acts or omissions upon which such waiver or estoppel was founded occurred after the plaintiff had furnished the material, and by so doing put itself in privity with the parties to the bond, if one had been given. In my opinion, the demurrer was also rightfully sustained because of the misjoinder of causes of action. Long, one of the defendants, was not liable upon the bond. If he was liable to the plaintiff at all, it was upon a contract entered into between it and himself, to which the other defendants were strangers. The right of action as against him could only have been upon the contract under which the materials were furnished, and it is clear that the other defendants were strangers to that contract. The claim of appellant in this regard is that by the execution of the instrument in question the sureties became parties to the contract for the erection of the building. I am unable to see any reason for sustaining this claim. If the county itself was attempting to enforce rights against Long, there might be some reason for holding that a bond given by him and sureties for the performance of the contract would establish a privity as between the sureties and the county in relation thereto. But, in my opinion, the claim could not be sustained even in an action of that kind; much less can it be when the action is sought to be maintained by strangers to such contract. The contract between the county and the one who was to erect the building was distinct and complete before the execution of the instrument in question. With such contract the plaintiff had no connection. The instrument in question was given to the county for the purposes contemplated by the statute, and, if an action could be maintained thereon at all, it could only be against those who were parties to it. If the sureties were liable at all, they were liable upon the instrument which they signed. The defendant Long, not having signed such instrument, could not be made liable thereon. If liable to plaintiff at all, his liability arose out of an entirely different contract. Hence the contention of the defendants that two causes of action had been improperly joined was warranted by the facts. In my opinion, the judgment should be affirmed.
HOYT, C. J. This was an application for a writ of mandate to compel the commissioner of public lands to receive the money of the relator, and issue to him a certificate of purchase for certain tide lands situated in Mason county. To the petition a demurrer was interposed, and, after hearing, overruled. The opinion of the court, rendered upon such hearing, will be found in 8 Wash. 610, 36 Pac. 686, 1120. Upon the overruling of such demurrer, the alternative writ prayed for was issued, and a return and answer thereto filed on behalf of the commissioner. When this answer came before the court for consideration, a further opinion was rendered, in which it was held that the facts stated in the answer justitied the action of the commissioner in refusing to issue the certificate of purchase. Petitioner was given the right to put in a reply to the affirmative matter stated in the answer, and the proceeding was continued for the purpose of allowing him so to do. Such reply having been put in, petitioner now moves the court to set the case down for hearing upon the questions of fact raised by denials in the reply to certain allegations of the an
Pending this motion the respondent moves for judgment upon the pleadings, dismissing the proceeding.
If we assume that the demurrer to the original petition was rightly overruled, it would, perhaps, follow that the questions of fact raised by the reply to the allegations of the answer would have to be tried before the rights of the parties could be finally de. termined. But a careful reading of the opinion rendered at the time the return to the alternative writ was before the court satis. fies us that the objections now urged to the sufliciency of the petition were not consid. ered by the court at the time the demurrer was overruled. It is stated therein that the questions which challenged the attention of the court at the time it passed upon the demurrer related to the board of tide-land commissioners, and its right to control the
action of the commissioner of public lands, if, in a proper case, we would have jurisdicin the determination of questions under the tion so to do. Under the above-stated rule statute upon which petitioner founded his of law, the petition stated no facts which rights. From all that was stated therein, it would authorize an interference by this seems clear that it was the intention of the court with the action of the commissioner. court to substantially qualify what had been It follows that the alternative writ must be said in passing upon the demurrer to the discharged, and the proceedings dismissed. petition. It is true that nothing was said about a rehearing of the questions presented SCOTT, ANDERS, and GORDON, JJ., conby the demurrer, but it was probably be- cur. cause it was thought that such questions could be as well determined upon the issues DUNBAR, J., dissents. made by the reply to the answer. The law relating to applications of this kind was correctly stated in such opinion as follows:
(11 Wash. 201) “The law has intrusted the commissioner
CAMPBELL et al. v. STERLING MANUF'G with the duty and power of determining the
CO. et al. (TUCK et al., Interveners). facts in each application presented to him,
(Supreme Court of Washington. Feb. 14, and directed him, upon the proof of these
1895.) facts, to proceed in a certain way. With the
LOGGING LIENS. determination of the facts the courts will
1. Laws 1893, c. 132, § 2, giving a lien to not interfere, but, should he make an erro- every person la boring on or assisting in manuneous application of the law to the facts, it facturing timber into shingles, while the same will then be time enough for judicial inter
remain at the mill, or in the control of the
manufacturer, allows a lien on shingles made ference." Under this construction of the
from shingle bolts on which the work for which law, and of the duties of the commissioner the lien is claimed was performed, while the thereunder, there is no allegation in the
shingles are under the control of the manufac
turer. pleadings of any such action on his part as
2. Laws 1893, c. 132, § 1, giving a lien to will warrant the interference of this court. every person laboring on or assisting in obtainNor does it appear that the commissioner ing logs, does not give a lien to one who em. has refused to proceed in the determination
ploys men to do the work for which the lien is
claimed, but does not directly labor himself. of questions of fact relating to the application. Interpreting the allegations of the pe
Appeal from superior court, Skagit county; tition and of the reply together, it only Henry McBride, Judge. appears therefrom that the commissioner re
Action by 0. J. Campbell and others fuses to accept payment for the lands and against the Sterling Manufacturing Comissue a certificate of purchase therefor. It
pany and others to foreclose a mechanic's is not made to appear therefrom that he has
lien. H. E. Tuck and others intervened. determined the facts in accordance with the From a judgment in favor of all the intercontention of the petitioner, and, upon the
veners, except himself, intervener Tuck and facts so found, so construed the law as to Campbell appeal. Affirmed. deprive the petitioner of his rights. It does Million & Houser, for appellants. C. C. not appear that the commissioner has ever Bitting, for respondents. decided any fact, nor does it appear that he has refused, upon a proper application, to DUNBAR, J. The Sterling Manufacturproceed with the investigation thereof. All ing Company, one of the defendants, was enthat satisfactorily appears is that petitioner | gaged in the manufacture of shingles during made an application, which he claims to the year 1894 in Skagit county; and the have been in due form, and that upon such plaintiffs, 0. J. Campbell et al., worked in application the commissioner refused to is- the mill, and assisted in the manufacture of sue a certificate of purchase. Under the shingles. The latter afterwards filed their rule of law above stated, it would seem that liens, and began this action to foreclose. Dethere could be no relief for an applicant on fendants not appearing, their default was account of any error by the commissioner entered, and plaintiffs had judgment estabin the determination of questions of fact pre- lishing their liens. The interveners, who sented for his decision. But it is not neces- are the respondents here, together with H. sary to go that far in order to sustain the
E. Tuck, intervener and appellant, asked action of the commissioner in the case at and obtained leave of the court to intervene; bar. If this court, under any circumstan- and in due course of time their rights were ces, could re-examine the questions of fact tried by the court, and, with the exception decided by the commissioner, it would only of appellant Tuck, their liens were sustainbe upon a record which contained a full ed. All the interveners, save Tuck, worked statement of the evidence upon which his under a contract with the company whereby decision was founded. The evidence upon they were to cut shingle bolts at $1.10 per which the commissioner decided the facts in cord, which bolts were used in the manuthe case at bar, if he ever did decide them, facture of the shingles on which the plainhas not been brought before us. Hence, we tiff's claimed their liens. The shingles were could not review his findings of fact, even sold, and the money held by a trustee for
the benefit of all parties interested. The court in any respect. The judgment will plaintiff's, Campbell and others, contend that therefore be affirmed. the court erred in allowing the liens of the interveners, and that the court should be HOYT, C. J., and GORDON and ANDERS, sustained in denying the lien to intervener JJ., concur. Tuck.
We do not think the court erred in sustaining the liens of the interveners. The stat
(11 Wash. 189) ute (section 2 of chapter 132 of the Laws of
PETERMAN 7. MILWAUKEE BREWING
CO. et al. 1893) provides that “every person perform. ing work or labor, or assisting in manu
(Supreme Court of Washington. Feb. 14, facturing saw logs and other timber into
1895.) lumber and shingles, has a lien upon such
MECHANIC'S Lien CLAIM-IDENTITY. lumber while the same remains at the mill
1. A mechanic's lien is not invalidated by
the fact that a door that was not furnished where it was manufactured, or in the pos. was included in the claim, where it was insertsession or under the control of the manu- ed through the mistaken judgment of the claim. facturer," etc. We think it is too narrow a
ant as to his rights, another door than that construction of this act to hold that the lien
which he contracted to furnish having been
used. should have been filed against the shingle 2. A lien claim for material furnished for a bolts, instead of against the manufactured "one-story refrigerating machine building and article, as long as the shingles were under
boiler house" is not at variance with proof that
there were two buildings on the ground, where the control of the manufacturer. It was evi
it is shown that they were so substantially condently the intention of the legislature to pro- nected as to make but one building, and that vide a more adequate and general remedy
there could be no mistake as to the identity of
the structure. for the persons performing labor upon timber of this kind, and that necessity was no
Appeal from superior court, Pierce county;
W. H. Pritchard, Judge. doubt suggested to the legislature by the construction which this court placed upon
Action by Theodore F. Peterman against the former law in the case of Dexter, Hor
the Milwaukee Brewing Company, S. A. Bar.
stow, and others. There was a judgment ton & Co. v. Sparkman, 2 Wash. St. 165, 25 Pac. 1070. We think there can be no doubt
foreclosing a mechanic's lien, and a personal that the court properly construed the law, in
judgment against defendant Barstow. From allowing the liens upon the shingles in this
the judgment against him, Barstow appeals.
It is urged, however, by the brief of re- John A. Shackleford, for appellant. Fenley spondent interveners, that the court erred in Bryan and D. F. Murry, for respondent Pe not allowing the lien of intervener Tuck; terman. but in this we think, also, the court properly construed the lien laws. Section 1, as well DUNBAR, J. This was an action for the as section 2, of the act above mentioned, pro- foreclosure of a mechanic's lien for matevides that "every person performing labor rials used in the construction and compleupon, or who shall assist in obtaining," etc., tion of a one-story refrigerating machine shall be entitled to a lien. But we do not building and boiler house. The defendant think that this goes so far as to make pro- Barstow is the contractor, and the Milwauvision for a lien for a person who does not kee Brewing Company, the appellant, is the directly or indirectly perform labor upon owner of the property. Peterman, the resuch timber or logs. Evidently, Tuck, in spondent, is the lien claimant. A decree was this instance, having employed men to do entered enforcing the lien upon the lots upon this particular work, did not directly per- which the building stood, for the value of form the labor himself, and we think the ob- the materials furnished, and a personal judg. ject of the law was to give a lien to the men ment was given against the contractor, Barwho directly performed the labor. It is stow. true, the statute says that he who assists in The contention of the appellant is that the manufacturing sa w logs and other timber in- lien notice does not correctly state the amount to lumber and shingles has a lien, etc.; but of plaintiff's demand, that the evidence shows we do not think that intervener Tuck as. that the excess stated was not by mistake or sisted, within the meaning of the word as inadvertence, that the overstatement was inused in the law. One who worked upon a tentional and fraudulent, and that by reason logging road; one who greased the skids, or of said fraud the whole lien is invalid. This did such secondary-or, rather, indirect- contention is based upon the fact that a work as this, --could be included under the door valued at three dollars was incorporated expression “assisting in,” or “who shall as- in the lien claim, which, it eventuated in the sist”; and it was probably to meet the re- testimony, was not used in the building, or quirements of such employés as these that furnished by the lien claimant. The law is these words were added to the phrase, “ev- well established that, if there is an attempt ery person performing labor upon,” in both to perpetrate a fraud in the filing of a lien sections 1 and 2 of the act above referred to. claim, it will invalidate the lien; but we are We think no error was committed by the not satisfied, from the whole record in this