National Surety Co. v. American Savings Bank & Trust Co.

Citations

• 101 Wash. 213
• 172 P. 264
• 1918 Wash. LEXIS 832

Syllabus

<p>Appeal—Review—Discretion—Motion to Dismiss. Tbe denial of a motion to dismiss for want of prosecution, will not be disturbed on appeal except for abuse of discretion.</p> <p>Municipal Corporations—Improvements — Assignment by Contractor—Construction—Validity as Against Claimants. A contractor’s assignment to a bank of all sums to come due from tbe city, made for tbe purpose of financing tbe work, wbicb provided that it shall not be valid as against claims for labor and materials, does not make the money a trust fund in tbe bands of tbe bank for tbe benefit of labor and material claims accruing and filed with tbe city after tbe seventy per cent of tbe estimates were paid to tbe bank as earned by tbe contractor, who was not in default, tbe intention being to authorize tbe city to pay to tbe bank what it might have paid to tbe contractor.</p> <p>Same. Since such an assignment is not an appropriation of tbe fund, until actual payment, and then only pro tanto, it passes absolute title to each installment of tbe money to become due to tbe contractor, subject only to any claims for labor or material then existing and of which tbe city has notice when tbe payment was made; and neither tbe city, claimants, nor the contractor’s surety could recover tbe money.</p> <p>Same—Improvements—Assignments by Contractor—Release op Funds Assigned—Rights op Surety and Assignee. Where tbe absolute title to money earned by a contractor bad passed and tbe money had been paid to tbe contractor’s assignee, a bank that bad been financing tbe work, and to whom tbe contractor was heavily indebted, tbe surety’s written request to tbe bank to release certain sums in its possession for tbe purpose of paying claims, raises an implied promise by tbe surety to repay tbe bank, if tbe contractor did not, where tbe surety was thereby relieved from tbe necessity of paying tbe claims, and in its request expressly agreed that tbe bank should forfeit none of its rights by releasing tbe money; notwithstandi