City of Spokane v. Costello

Citations

• 33 Wash. 98
• 74 P. 58
• 1903 Wash. LEXIS 494

Syllabus

<p>Judgment—Bond .to Save Harmless From—Due Notice of Suit. A notice to defend a suit given eleven days before the trial of an action against a city for personal injuries, is prima facie “due notice,” making the judgment rendered against the city binding upon a contractor, under his bond to save the city harmless therefrom and agreeing to be bound thereby upon “due notice” thereof.</p> <p>Same. Such notice is not conclusive, and it is a good defense to an action on the bond that the notice did not give sufficient time to prepare for trial, that the city did not defend in good faith, and that a meritorious defense to the action existed.</p> <p>Same—Action to Recover Amount of Judgment—Proof of Contractor’s Negligence—Nonsuit. In an action on a contract- or’s bond, conditioned to save the city harmless from all actions and claims for damages arising from the negligence of the contractor and agreeing to be bound by any judgment upon due notice of the suit, the city cannot recover the amount paid out on a judgment for damages, without showing that the negligence complained of in the damage case was the act of the contractor, and no such proof being offered, and the pleadings and record in the damage case failing to connect the contractor therewith, a nonsuit should be granted.</p> <p>Same—Estoppel. In such a case, a mere recital in the notice of the pendency of the damage suit is not proof that the negligence was the act of the contractor, nor would such recital operate as an estoppel against him.</p>