[4] In their fourth point counsel assail the, nary bids? True, respondent required each right of the respondent to recover from appel- bidder to include in his bid a statement of lant the amount claimed by it for completing the maximum cost for completing the plant. the heating and ventilating plant. It is con- Let it be assumed that in that respect the tended that respondent was not authorized bids were unusual; yet would not each bidto recover the cost of completing the plant der, irrespective of that requirement, in arexcept after advertising for bids and letting riving at the amount of his bid, necessarily the job to the lowest bidder as it was required have taken into consideration the actual to do in letting the original contract. The re- cost of completing the plant, that is, the spondent advertised for bids to complete the cost of all labor and material, whether he heating and ventilating plant according to the expressed it in his bid or not? By what othspecifications and in accordance with the er method could any bidder have arrived at terms of the contract, but in the advertise- the actual amount that his bid must be in ment for bids it required from all the bidders order that he might receive an amount equal the following statement: to what it would cost him to complete the plant? The mere fact that the bids varied as they did is conclusive proof that the bidders arrived at the result in this case precisely the same as they do in all cases of competitive bidding. Why, then, were the bids in question, in truth and in fact, not competitive, although differing in the particulars stated from the usual method of bidding? There is, however, not the slightest hint that the plant could have been completed for less than respondent was required to pay. Appellant's objection is therefore purely a legal or technical one which, in our opinion, for the reasons stated, ought not to prevail.

"Contractor will state in his bid a guaranteed maximum cost for the completion of said contract as called for, and also state the percentage for which he will perform the work, but it must be distinctly understood that payment will be based on and made only for the actual cost of labor and material, and the percentage will be based thereon. Contractor will also note that he must be in position to take up the work immediately and complete same by August 1, 1913."

Upon the foregoing advertisement there were seven bidders who submitted bids. The highest bid for completing the heating and ventilating plant was for $68,750 and 112 per cent. additional for superintendence, while the lowest bid was for $65,500, plus 10 per cent. for the latter purpose. The contract was let to the lowest bidder. The original contract price for completing the plant was $53,879. The bids were thus all largely in excess of the contractor's original bid. The evidence is undisputed that it cost the sum of $72,000 to complete the heating and ventilating plant. That sum was $18,021 in excess of the contractor's bid, and it was stipulated at the trial that, after deducting all credits due to the contractor, if the respondent was entitled to judgment under the facts and the law, then the amount thereof should be $17,000.

Assuming, without deciding, counsel's contention that, under the law, respondent was required to advertise for bids to complete the plant precisely the same as it was required to do in order to construct the high school building, and further assuming that the appellant, without showing actual prejudice, may legally insist upon that method of completing the plant, yet we fail to see in what respect respondent has failed to comply with the law as counsel insist it has. We are not unmindful of the fact that counsel urge that, in view that the bids were based upon actual cost for labor and material with a percentage added for supervision, therefore the bids were not competitive; that is, as we understand counsel, in view that the bidders were asked to include in their bids (giving it in the language contained in the notice to bidders) "a guaranteed maximum cost for the completion of said contract," therefore the bidders were not free to bid and the bids were not competitive. Now, in what way do

[5, 6] The fifth point is based on the provision in the contract that the contractor shall furnish a bond for the faithful performance of the contract and prompt payment of all labor and material which shall "expire two years from the date of the contract." There is nothing contained in the bond itself concerning that matter. Assuming, however, that the provision contained in the contract is controlling, yet there is no reason why the bond was not in full force and effect when the defaults set forth occurred. Even though the provision in the contract controls, it still must receive a reasonable construction and application. The meaning, as well as the apparent intention, of the provision clearly is that the obligation in the bond shall not cover any defaults of the contractor under his contract which occur after the expiration of two years. The evidence is without dispute that all the defaults in controversy occurred long before the two years had expired. The mere fact that suit was not brought within the two years, or that the exact amount of what had been expended by respondent had not been ascertained within two years, in no way affects its right to recover on the bond. this connection it is also contended that the court erred in admitting in evidence the audit and certificate of the architect showing the amount respondent had expended to complete the heating and ventilating plant. In the absence of any claim of fraud, and in view of the stipulations in the contract that the audit and certificate in question shall be competent evidence, we hardly grasp the force of counsel's contention. The audit and certifi

In

dence as between the contractor and the re- consideration of the appeal from the Judgspondent, and hence they are likewise proper ment in favor of the intervener. as against the appellant. That such is the law is clearly held in the case of Connell v. Higgins, 170 Cal. 541, 150 Pac. 769.

The next point argued is that the respondent was itself in default when it terminated the employment of the contractor, and hence its action in that regard was illegal. The contention is based upon the familiar principle that, where one of the contracting parties is in default, he cannot legally enforce a forfeiture based on a default of the other party to the contract. That such is the law may be conceded. It must suffice to say, however, that there is nothing in this case to make the principle applicable.

It is further contended that the court erred in restricting appellant's counsel in crossexamining the architect. A careful reading of the cross-examination of that witness shows that the court gave counsel all the latitude they were entitled to under the law. Indeed, the court in many instances went far beyond what counsel could demand as matter of right, and in no instance did the court abuse its discretion in denying further cross-examination. There is no merit to this

contention.

a

Nor is there any merit to the eighth point, namely, that the court erred in permitting the respondent to amend its complaint. The court restricted the operation of the amendment, and, as restricted, it was entirely harmless.

The intervener recovered judgment against appellant upon that provision of the bond wherein appellant obligated itself to pay for all "labor or material used in the prosecution of the work provided for in said contract." In substance, the intervener alleged that it had sold and delivered to the contractor the three boilers that are mentioned in the proceedings in respondent's appeal, and had also sold and delivered to it other material, all of which was used in the prosecution of the work on said high school building; that there was due to the intervener from the contractor for said material a balance of $3,113.71, for which it prayed judgment, with interest. After the jury had returned a verdict in favor of the respondent the matters arising upon the complaint in intervention and appellant's answer thereto were tried to the court, the same judge presiding who had presided in respondent's case. trial resulted in findings of fact, conclusions of law and judgment in favor of the interVener, and the appellant appeals from that judgment.

The

relate to the findings of fact. The findings The principal assignments on that appeal After making the preliminary findings the of the court cover every phase of the case.

court found:

ber, 1912, and the 10th day of January, 1913, "That on and between the 1st day of Novemat Salt Lake City, Salt Lake county, state of Utah, the intervener sold and delivered to said cial instance and request and in the ordinary defendant Wright-Osborn Company, at its specourse of business, plumbing, heating, and ventilating materials consisting of boilers, smokestack, breeching, black pipe and fittings of the of $5,863.71, f. o. b. Salt Lake City, Utah, all agreed and reasonable value and purchase price as appears from an itemized statement of said account hereinafter set forth.

Finally, it is contended that the court erred in withdrawing certain issues from the jury in its charge. We have carefully read the court's charge to the jury, and, after doing so, have failed to discover anything to justify counsel's contention. The charge covers every issue presented by the pleadings and the evidence. Moreover, the charge cov-livered as aforesaid were expressly ordered and ers many collateral matters, which, from an inspection of appellant's requests, were evidently taken therefrom by the court.

"That all of said materials so sold and de

"That all of said materials were actually delivered by the intervener to said defendant Wright-Osborn Company on the premises upon of erection, and all of said material was used which said high school building was in process in the prosecution of the work provided for in said contract.

purchased by said defendant Wright-Osborn Company, and were in good faith sold and delivered by the intervener to said defendant for use The record discloses that the case was the said contract between the plaintiff, the in the prosecution of the work provided for in fairly presented and ably defended, and board of education of Salt Lake City, and the while, upon the record alone, we might, on said defendant Wright-Osborn Company heresome facts, have arrived at a conclusion dif- inabove referred to. ferent from that arrived at by the jury, yet every essential fact is supported by substantial evidence. We remark that every objection and exception is based upon what is usually termed technical grounds. While it is true that parties should be given, and clearly have, the right to insist upon such grounds, yet it is also true that where, as here, all legal and technical rights have received full consideration, and where nothing is demanded except that which the appellant clearly obligated itself to fulfill, courts should not shrink from enforcing the obligations unless there is some good legal reason why the obligations should not be enforced.

This disposes of the appeal in so far as it affects the respondent. We now proceed to a

"That in the sale of said materials no special terms of time of payment was agreed upon; that said materials were bought and sold upon open running account payable on the 1st day of the month following deliveries."

The court further found:

pany, before placing its order with the inter"That said defendant Wright-Osborn Comvener for tubular boilers, advised the plaintiff and its architect that it was negotiating with this intervener to purchase from the intervener three Kewanee tubular boilers, and the said plaintiff, on or about the 9th day of July, 1912, expressly approved of the three Kewanee tubular

boilers to be furnished by the intervener, and thereupon said defendant Wright-Osborn Company placed its order for said boilers with the intervener.

"That this intervener received the specifications for said boilers through the Utah state agent of the Kewanee Boiler Company, who in turn made up said order from specifications relating to said boilers prepared by the architect for the plaintiff and furnished to the defendant Wright-Osborn Company, and in its hands at the time said order was placed.

vener.

"That the said state agent for the Kewanee Boiler Company and the defendant Wright-Osborn Company and the intervener made up said order in good faith, believing that it conformed exactly to the specifications adopted for the same by the plaintiff, and the intervener filled said order in good faith, and the said boilers so as aforesaid furnished conformed in every particular with the order so placed with the inter"That all of the other material furnished by the intervener conformed to the order placed by said defendant Wright-Osborn Company with the intervener, and conformed to said contract and the specifications thereto attached. "That the boilers were received upon the high school premises during the month of October, 1912, and were shortly thereafter placed in the permanent positions designed for them in the boiler room, and prior to the 17th day of January, 1913, were partly bricked in.

boilers that were in controversy on the appeal against the respondent, and to which reference is made in the course of the opinion on that appeal. The evidence discloses that there were two sets of specifications prepared affecting the boilers to be used in the heating plant, which, for convenience, we shall designate as specifications No. 1 and specifications No. 2. The difference in the two specifications is important in some particulars.

One of the questions submitted to the jury in the respondent's case was whether specifications No. 1, or specifications No. 2, to which the boilers had to conform, had been adopted by the architect. The jury found that specifications No. 1 had been adopted by the architect, and that the boilers purchased by the contractor did not comply with those specifications, and hence the contractor had failed to comply with the terms of his contract, in that he had failed to furnish boilers in accordance with the specifications. Upon the other hand, the judge who tried the intervener's case, and who also presided at the trial of respondent's case, found that specifi

"That said boilers were thereafter, and subse- cations No. 2 were the ones that had been quent to the 17th day of January, 1913, remov- adopted by the architect, and that the ed from their positions in said boiler room by boilers in question which were purchased the plaintiff, and other boilers were substituted. "That said boilers were not in any particular by the contractor from the intervener were defective in workmanship, design or material, in all respects as required by the specificaand were fully capable of discharging the functions. The findings of the jury in respondtion required of boilers in connection with the heating and ventilating system of said high school building, and could have been insured up to 125 pounds' pressure by the Hartford Fire Insurance Company.

"That all of the materials sold and delivered by the intervener as aforesaid, excepting only the said three tubular boilers, and not exceeding 10 per cent. of the pipe and fittings, entered into and became a part of the finished high

school structure.

"That the stack and breeching were ordered and sold in connection with and as a part of said three boilers, and entered into and became and still is a part of said finished high school struc

ture.

"That the three boilers, while removed from the boiler room, were not removed and were not ordered removed from the premises, and were not returned by the plaintiff to the defendant Wright-Osborn Company, or to this intervener, and all of the materials so, as aforesaid, sold by the intervener, were, and still are, held and retained by plaintiff upon the high school prem ises, and were all used in the prosecution of the work provided for in said contract.

"That by virtue of an order made by this court in this cause the defendant Fidelity & Deposit Company of Maryland has been subrogated to all of the right, title, and interest of the plaintiff in and to any and all of said materials which did not become a part of the finished structure, subject to the payment of the judgment in favor of plaintiff."

The court also found that there was a balance due intervener for said material amounting to $3,113.71, for which sum, with interest, judgment was entered in its favor.

Appellant contends that the findings are not supported by the evidence.

[7] The principal controversy arises with respect to the boilers which are referred to in the foregoing findings, and which are the same

ent's case and the findings of the court in the intervener's case are therefore in direct conflict. The findings of the jury and those of the court are, however, based upon conflicting evidence. It was the exclusive province of the jury to determine the weight of the evidence and the credibility of the witnesses in respondent's case and such was the exclusive province of the judge in the intervener's case. The verdict of the jury upon the issues presented in respondent's case and the findings of the court in the intervener's case must, therefore be considered as entirely independent, and as though they constituted the result in two separate and distinct cases. We, under our Constitution, are powerless to interfere upon a question of fact in case there is some substantial evidence in support of any fact which is in dispute and which is material to the controversy. Nor, under the evidence, are the verdict of the jury and the findings of the court so inconsistent that we can say as matter of law that both cannot stand. It may be conceded that there are several conclusions of law interspersed among the findings of fact which. perhaps, in some respects, might be said to go beyond the evidence; but those conclusions can be given no effect. The findings | are therefore not vulnerable to the objections made against them by counsel.

[8] Counsel, however, urge that appellant is not liable for the unpaid purchase price of the boilers because they ultimately did not become an integral part of the heating plant. Under the facts and circumstances of this case, and

in view of the provisions of the bond, coun- | materials sold and delivered. We have sel's argument should not prevail. Under already held that the three boilers were furthe findings of fact, all of which are support- | nished pursuant to the contract and were coved by sufficient evidence, the boilers were ered by the indemnity bond. If that conclupurchased and sold in good faith. They were sion is sound, and we think it is, then, as a purchased and delivered pursuant to, and for matter of course, the question of the applicathe very purpose contemplated by, the con- tion of payments is not material in this case so tract entered into between the respondent far as that question affects the purchase and the contractor. They fully complied with price of the boilers. What is true of the all the specifications, and, upon delivery, boilers is, however, also true of the 10 per ceased to be the property of the intervener. cent. of the pipe and other materials that To all intents and purposes the boilers were were sold and delivered by the intervener to purchased and used in the prosecution of the contractor, but which did not actually bethe work, and hence the contractor became come a part of the heating plant. All of the liable to the intervener for the unpaid pur- materials sold and delivered by the intervener chase price thereof. If that be true, then were sold and delivered pursuant to the conwhy, under the foregoing facts and circum-tract entered into by the contractor with the stances, is not the appellant also liable on its bond? The Supreme Court of Washington has held that an indemnitor is liable under circumstances which, in principle, do not differ from the circumstances in this case, in the case of Crane Co. v. United States, etc., Co., 74 Wash. 91, 132 Pac. 872.

Suppose in this case the school building and the boilers had been destroyed immediately after they had been placed in the building, but before they became a part of the heating plant. They then would not, and, could not, have become an integral part of the plant, and yet would any one seriously

contend that, under the facts and circumstances before stated, the contractor and his indemnitor would not be liable to the intervener for the unpaid purchase price? Again, suppose that the boilers had been purchased and delivered in good faith, and pursuant to the contract, and for the purpose contemplated therein, and that they in all respects had conformed to the specifications, and the title thereto had passed to the contractor, but were destroyed before they actually became a part of the plant. Who would then be liable? There is, there can be, but one answer to the question. It must be conceded that the facts and circumstances of this case in many respects stamp it as one that is unusual and extraordinary. That, standing alone, however, cannot change legal principles. In our opinion neither the contractor nor the indemnitor can, upon legal grounds, escape liability.

It is not necessary to review or to refer to the many cases that are cited by counsel in their briefs. The questions decided in the cases referred to by appellant's counsel in nearly every instance arose under mechanic's lien statutes. It is general knowledge that those statutes differ in the different states. For that and for other reasons which appear in the decisions, those cases can be given no controlling effect in this case, and hence need no further consideration.

It is further contended that the trial court erred in applying the payments made by the contractor to the intervener on account for

respondent, and while not quite all of the material actually became a part of the heating plant, nevertheless all came within the rule announced by the Supreme Court of Washington in the case of Crane Co. v. United States, etc., Co., supra. The question of the application of payments is therefore also not applicable to those materials. It therefore is not necessary for us to determine the important question respecting the rule governing the application of payments, as that question may arise between a materialman and a surety upon the contractor's for all of the material, but has made paybond where the contractor defaults in paying ments on account, which payments are sought to be applied by the materialman on material not covered by the surety bond. That question is left open until it legitimate

ly arises.

and the judgment in favor of the intervener The judgment in favor of the respondent

ent on the appeal from the judgment in its are therefore affirmed, with costs to respondfavor and with costs to the intervener on the appeal from the judgment in its favor. MCCARTY and CORFMAN, JJ., concur.

(49 Utah, 477)

SOUTH HIGH SCHOOL DIST. OF SUMMIT
COUNTY v. McMILLAN PAPER & SUP-
PLY CO. et al. (No. 3041.)

(Supreme Court of Utah. April 19, 1917.)
1. ASSIGNMENTS 90-RIGHTS ACQUIRED BY
ASSIGNMENT.

only the rights the assignor had therein.

An assignee of a mere chose in action takes

[Ed. Note.-For other cases, see Assignments, Cent. Dig. § 156.]

2. SCHOOLS AND SCHOOL DISTRICTS 86(2)— RIGHTS OF LABORERS AND MATERIALMEN ASSIGNMENTS-"LIEN."

Comp. Laws 1907, § 1400x, provides that any person who has done work or furnished materials to any principal contractor for the construction or repair of any public work for any school district, etc., may sue the contractor and the school district, and that the court may render judgment against the school district for the amount due from it to the contractor or for a sufficient amount to pay the judgment recov

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 164 P.-66