Sears v. Williams , 9 Wash. 428 ( 1894 )

The opinion of the court was delivered by

Hoyt, J.

— Appellants and their joint defendants were sureties in a bond executed by Billy Williams, who had a contract with the city of Anacortes to grub and grade certain streets in said city. This bond was taken in pursuance of the provisions of §2415, Gen. Stat., for the purpose of relieving said city from liability under the provisions of § 2416. The respondent brought suit against the sureties named in said bond to recover for materials furnished to said contractor in the carrying out of his contract. Trial was had, and a judgment rendered in his favor, from which this appeal is prosecuted.

That the provisions of § 2415 of the General Statutes are not applicable to street grading contracts was directly ruled by this court in the case of Clough v. Spokane, 7 Wash. 279 (34 Pac. 934). Hence it was not necessary for the city to take the bond for the purpose of relieving itself of the liability imposed by the statute.

It is claimed, however, that it was competent for the city to require such a bond as a condition precedent to awarding the contract, and that the bond having been voluntarily entered into, and not being for an illegal purpose, should be enforced as a contract between the parties. This contention may well be conceded, and yet it will not follow that the respondent had any right to maintain an action thereon. If the bond was not one contemplated by the statute it could derive no vitality therefrom. All the force it could have would be that of a contract voluntarily entered into by the parties. This being so it must follow that while the bond may have been a good one as between the city and the obligors, by reason of, its having been voluntarily entered into, it could not be enforced in favor of the respondent, who was in no sense a party thereto. So far as it was a contract between the city and the makers it might be capable of enforcement, notwithstanding the fact that the State of Washington was named as the obligee, instead of the city. Under the strict rules which formerly prevailed, such a misnomer of the obligee would have been fatal, but under the more liberal rule announced by many late cases such might not be the effect of such misnomer if it appeared from all the circumstances that the bond was in fact executed for the benefit of the city. But this rule cannot be so far extended as to give the bond force in favor of one who at the time of its execution had no connection, direct or indirect, with the subject matter to which it related. A common law bond cannot be enforced excepting in favor of the obligee, or some one who at the time of its execution was the person for the benefit of whom it was executed. The respondent had no such connection with the execution of this bond as to entitle him to any relief under its provisions, nor had he any right to so rely upon it as to make available to him any rule as to the estoppel of the obligors. The bond not being a statutory one, the respondent not having been a party thereto cannot maintain an action thereon.

The judgment will be reversed, and the cause remanded with instructions to sustain the demurrer to the complaint.

Stiles and Anders, JJ., concur.