Baum v. County of Whatcom

54 P. 29, 19 Wash. 626, 1898 Wash. LEXIS 438

• Court: Washington Supreme Court
• Decided: July 20, 1898
• Docket: No. 2787
• Status: Published

Opinion

Per Curiam.

The defendant let a contract to one Moran for the construction and improvement of a county road. The contract provided that the contractor should •execute a bond containing the provisions of § 2415, 1 Hill’s Code (Bal. Code, § 5925). A bond was executed accordingly, but contained a recital that it was executed as a ■common law bond, and not in pursuance of the statute .aforesaid, and also that under the decisions of the supreme •court it was not required to take a bond to secure the per.formance of the contract, etc. The plaintiff furnished supplies to the contractor for his use in the construction of the road, which were not wholly paid for; and he brought this action against the county for a failure to take a bond under the statute, relying upon the statement in the bond that it was not taken thereunder, and upon the further fact that he, not being a party to the bond, could not avail himself of its provisions; citing Sears v. Williams, 9 Wash. 428 (37 Pac. 665). It being conceded that the bond •contained all the conditions required by the statute, the recital that it was taken, not as a statutory, but as a common law, bond, would not vitiate it; and the case referred to was overruled in the particular mentioned in State v. Liebes, ante, p.589, decided July 6, 1898. The holding in that case disposes of this one, and the judgment is affirmed.