City of Seattle v. Liberman

Citations

• 9 Wash. 276
• 37 P. 433
• 1894 Wash. LEXIS 297

Syllabus

<p>APPEAL — NOTICE — EFFECT OF STIPULATION DISPOSING OF SUBJECT MATTER OF ACTION — STREET IMPROVEMENTS — ASSIGNMENT OF FUND DUE CONTRACTOR — LIABILITY OF CITY — ESTOPPEL.</p> <p>The fact that a written notice of appeal has not been served upon all the parties to the action is immaterial, when oral notice has been given in open court after the rendition of judgment, and an appeal bond given thereafter within the time required.</p> <p>A stipulation, entered into after an appeal is taken, providing for a distribution of a portion of the fund in controversy in the action, will not deprive appellants of the benefit of their appeal, when the stipulation itself shows that it was not intended as an abandonment of the appeal. (Hoyt, J., dissents.)</p> <p>The acceptance by a city comptroller of orders drawn by a contractor upon a street improvement fund binds the city to make payment thereof, and when the city has ignored the equities of different claimants in the division of payments due from such fund, the city becomes liable therefor to the party injured. (Hoyt, J., dissents.)</p> <p>Under a contract providing that seventy per cent, of the contract price of the estimated amount of work upon a street improvement should be paid monthly and the balance of thirty per cent, retained until the completion of the work and the satisfaction of claims for material furnished and labor performed thereon, an order drawn by the contractor in favor of a third person for payment at the rate of seven dollars per thousand feet of lumber, to be made according to the partial and final estimates of the city engineer, as the work progresses, entitles such assignee to the full payment of said seven dol. lars per thousand, when that sum is less than seventy per cent, of the sum due under contract; and does not restrict the assignee to seventy per cent, of the seven dollars per thousand.</p> <p>The fact that the payee of an order on a street improvement fund accepts without protest but seventy per