Seattle v. Aetna Indemnity Co.

Citations

• 37 Wash. 515
• 79 P. 1097
• 1905 Wash. LEXIS 761

Syllabus

<p>Indemnity — Buhdino Contract — Bonds—Guaranty of Performance — Breach—Action on Bond Before Paying Claims. Where an indemnity bond provides that the contractor shall faithfully perform all the terms of the contract, and the contractor, having finished the building, left the state without paying claims for labor and materials, the surety is liable immediately for the breach of the contract, and the owner may sue on the bond without first paying the claims or becoming obligated to do so by judgment.</p> <p>Same — Notice of Loss — Waiver of Completion of Building. Where an indemnity bond guaranteeing a building contract provided for immediate notice to the surety of acts of the contractor involving a loss, the failure to give notice of the non-completion of the building on time, or extending the time for completion as provided for in the contract, is a waiver of damages for its non-completion on time, hut not for unpaid hills, as the surety cannot complain of a breach of the contract waived by the owner which does not operate to the prejudice of the surety.</p> <p>Same — Immediate Notice — Ten Days. Where an indemnity bond guaranteeing a building contract provided for immediate notice to the surety of acts by the contractor involving a loss, and the contractor left the state without paying claims for labor and materials, notice of the unpaid claims, given within ten days after knowledge thereof by the owner, is a sufficient notice under the bond.</p> <p>Same — Action on Bond Before Payment of Claims — Establishment of Claims — Subrogation of Amount Due to Primary Payment of Claims. In an action upon an indemnity bond guaranteeing the faithful performance of a building contract, to recover the amount of unpaid hills for labor and materials, in which the claimants for labor and materials are made parties and their claims established, it is proper to subrogate the amount due on the bond to the primary payment of the claims, where the surety was given an opportunity to