Marshall-Wells Hardware Co. v. Title Guaranty & Surety Co.

Citations

• 89 Wash. 404
• 154 P. 801
• 1916 Wash. LEXIS 712

Syllabus

<p>Limitation op Actions — Tolling Statutes — Injunction to Prevent Suits — Appearance—Proceedings—Effect on Stay — Statutes. Where an action was brought in the Federal court by the surety in the bond of a public contractor, to enjoin a multiplicity of suits on the bond and the transfer of funds by state officers, until the claims against the bond could all be established in one action, which claims the surety confessed a willingness to pay, and in which action the claimants appeared to prove their claims, but no injunction was issued, and the suit was finally dismissed as to all claimants whose claims against the bond were less than $2,000, the Federal suit does not operate to toll the statute of limitations against actions on the bond, under Rem. & Bal. Code, §§172, and 173, providing that, if an action is stayed by injunction, the time of the continuance of the injunction shall not be a part of the time limited, and that, if an action shall be commenced within the time prescribed therefor and judgment for plaintiff be reversed on appeal, the plaintiff may commence a new action within one year thereafter; since no injunction was issued and there was no appeal from or reversal of the decree of the Federal court.</p> <p>Same — Tolling Statutes — Agreement — Conditions. In such a case, the surety company is not equitably estopped to set up the three-year statute of limitations against subsequent actions on the bond by the fact that, in the Federal suit, it agreed that, if the claimants would enter an appearance in the Federal court, the claims would be paid as soon as properly established as true claims against the bond; since a promise to toll the statute of limitations must be clear, definite, and unconditional; and the promise was upon the condition of establishing the claims, which condition was not performed.</p> <p>Same — -Tolling Statute — Agreement — Election of Remedies. The voluntary appearance of the claimants in the Federal suit to avoid an injunction aga