Friend v. Ralston

Citations

• 35 Wash. 422
• 77 P. 794
• 1904 Wash. LEXIS 466

Syllabus

<p>Indemnity — Building Contract — Agreement to Furnish all Material — Breach—Filing of Mechanics’ Lien — Suit on Bond Before Discharge of Lien. Where an indemnity bond guarantees the faithful performance of a building contract in which the contractors agree to furnish all the material for the building, the failure of the contractors to pay for the materials furnished, resulting in the filing of a mechanics’ lien, is a breach of the contract and the bond, entitling the owner to maintain a suit on the bond before the payment and discharge of the lien claim for materials.</p> <p>Same — Defenses—Failure to Pay Contractors — Credits for Balance Due Allowed on Claim Against Contractors. In an action upon a bond guaranteeing a building contract, in which the-owner seeks to recover the amount of a judgment establishing a mechanics’ lien for material furnished to the contractors, it is nq defense that the plaintiff had refused to pay the contractors two small items for a balance due and for extras, where due credits were received therefor by the contractors and inured to the benefit of the surety on the bond, having been deducted from the amount of the plaintiff’s claim.</p> <p>Same — Judgment Against Principal — Notice to the Surety to Defend — Estoppel.. Where a surety company guaranteed, by its bond, the faithful performance of a building contract in which the contractors agreed to furnish all the material, and is given due notice to defend an action commenced by materialmen to foreclose a lien for material furnished to the contractors, a judgment obtained in good faith against the contractors, the principals in the bond, establishing the claim and foreclosing the lien, is binding upon the surety, to the same extent that it hinds the contractors, and in an action on the bond estops the surety company from claiming that there was no breach of the contract.</p>