Union Iron Works v. Strauser

Main, J. This action was instituted for the purpose of recovering upon a surety bond for material furnished to T. Strauser and son, who had a contract for the construction of the Northern Hospital for the Insane, at Sedro Woolley, Washington. The cause was tried to the court sitting without a jury. Judgment was entered for the plaintiffs. The defendant Fidelity & Deposit Company of Maryland appeals. The facts in this case are not materially different from those in the case of Wheeler, Osgood Co. v. Fidelity & Deposit Co., 78 Wash. 328, 139 Pac. 53. The plaintiff here occupies a corresponding position to the Wheeler, Osgood Company in that case. The principal question involved is whether the board of control, in the contract which it made with Strauser and son, had delegated to the architects the power to accept the building. In the Wheeler, Osgood Co. case, it was held that, under the terms of the contract, such power was given to the architects and that the architects had, in fact, accepted the building on December 6, 1912. The claim against the bond in the present case was filed with the board on January 8, 1913. Without detailing the facts or reviewing the law, it may be said that the decision of this question has been determined adversely to* the contention of the respondent in the Wheeler, Osgood Co. case. The other point involved is whether the board had the power to delegate to the architects the right to accept the building when it should conform to the contract. The law appears to be that, where the body acting for the state, county, municipality, or other public body, has been given power, by [53] statuté or charter, to contract for public buildings or improvements, such body acting for the state or other public body, in the absence of a limitation which forbids such delegation, may delegate to an architect, engineer, or other proper person, the right to determine when the work contracted for conforms to the specifications. This is not an attempted delegation of the right to exercise the judgment or discretion vested in a body acting for the public, but is a delegation of the right to determine a fact; that is, to determine whether the building or improvement constructed is in accordance with the terms of the contract and specifications. This fact is to be determined as any other question of fact. The board of control had the power to authorize the architects to determine whether the building conformed to the plans and specifications, and if they found that the contract was satisfied in that regard, to accept the work. State ex rel. Murphy v. Coleman, 71 Wash. 15, 127 Pac. 568; Omaha v. Hammond, 94 U. S. 98; City of Trinidad v. Hokasona, 178 Fed. 438; Jonathan Clark & Sons Co. v. City of Pittsburgh, 217 Pa. 46, 66 Atl. 154; Richardson v. Mehler, 111 Ky. 408, 63 S. W. 957; McGuire v. City of Rapid City, 6 Dak. 346, 43 N. W. 706, 5 L. R. A. 752; Bradford v. City of Pontiac, 165 Ill. 612, 46 N. E. 794. The respondent, however, claims that, since the statute, Rem. & Bal. Code, § 1161 (P. C. 309 § 97) provides that the claim against the bond must be filed within thirty days from and after the completion of the contract and the acceptance of the work by the board, therefore, the board had no power to delegate to the architects the right to accept the building. It is true, the statute says that the claim must be filed within thirty days after the acceptance of the work “by the board,” but this falls short of being a limitation upon the board’s right to delegate to the architect the right to determine when the building conformed to the contract and specifications. The.board having constituted the architects its agent while acting within the powers conferred, [54] the act of the architects becomes the act of the board. The inquiry is made as to what protection the claimant has if he cannot depend upon the action of the board itself, but must take notice of acceptance by the agent. This question may be answered by citing Cascade Lumber Co. v. Aetna Ind. Co., 56 Wash. 503, 106 Pac. 158, and the recent case of Washington Monumental & Cut Stone Co. v. Murphy, 81 Wash. 266, 142 Pac. 665. In those cases, it is held that a materialman or subcontractor had the right, at any time after completing his contract and before the completion of the work by the principal contractor and its acceptance, to file his claim against the bond. The respondent, at any time after he completed the furnishing of the material for which he had contracted with Strauser and son, had the right to file with the board his claim against the bond. The judgment of the superior court will be reversed, and the cause remanded with direction to dismiss. Chow, C. J., Ellis, and Gose, JJ., concur.