Ledingham v. City of Blaine

Mackintosh, J. Respondent Schrimser furnished a team and driver for work upon a contract for the grading of streets in the city of Blaine, the team and driver were furnished to a subcontractor, who agreed to pay therefor $6.50 per day; $2.50 representing the man’s wages, and $4 representing pay for the use of the team. Schrimser, not having been paid, filed notice of claim against the bond furnished by the principal contractor, and in this action is asserting that claim. Schrimser did not, within ten days after beginning to furnish the use of the man and team to the subcon [254] tractor, notify the principal contractor in writing that he had commenced to deliver materials, supplies or provisions for use upon the work. The claimant rests his right to recover without having given the ten days’ notice required by ch. 167, Laws of 1915, p. 525 (Rem. Code, §1159-1), upon the theory that he was not furnishing materials, supplies or provisions, but was furnishing labor. There is no question that the furnishing of a man for work would be furnishing labor, and it is equally as unquestionable that the furnishing of a team would be furnishing a supply. National Surety Co. v. Bratnober Lumber Company, 67 Wash. 601, 122 Pac. 337; Hurley-Mason Co. v. American Bonding Co., 79 Wash. 564, 140 Pac. 575; State Bank of Seattle v. Ruthe, 90 Wash. 636, 156 Pac. 540. These cases defined the use of teams as a supply under the law as it existed prior to the passage of the law of 1915, but we must assume that, when this law was passed, there was incorporated in it the judicial definition that had theretofore been given to the word supply. The record before us shows that Schrimser was furnishing both labor and supplies, for his contract called for $2,50 per day for the wages of the driver, and these have already been paid, and $4 per day for the use of the team, the contract being thus sever-able, both by its terms and by its performance. The claim for the amount due for the use of the team is not collectible in this action against the principal contractor and his bond, no notice having been given of the commencement of the furnishing of the supply. The decree of the lower court is reversed. Main, C. J., Tolman, Chadwick, and Mitchell, JJ., concur.