CRANE CO. v. MUSGRAVE & BLAKE et al. plumbing and heating system of the admin

101-CONTRACTORS' BONDS. A state building contract, providing that the contractor shall not assign the contract nor sublet any portion thereof without the written consent of the Board of Control and the bonding company, means no more than that there shall be no substitution of parties in place of the contractor in his contract with the state, releasing the contractor from any obligation under the Beers Building Company was to receive contract, without the consent of both the state and the bonding company, and an ordinary sub- as compensation for the work the sum of $7,contract by the contractor, not consented to by 260, payable in monthly installments as the

work progressed on the basis of 85 per cent. of the value thereof; the balance to be paid in 30 days following the completion of the work. On October 13, 1915, the bond here sued upon was executed by Beers Building Company, as principal, and the defendant Maryland Casualty Company as surety, in the sum of $7,260. It contained recitals and conditions as the law required as follows: "This bond is executed in pursuance of sections 1159 and 1161 of Remington and Ballinger's Annotated Codes and Statutes of the State of Washington, as amended by chapter 28 of the Session Laws of 1915, and is subject to all of the provisions thereof, and is entered into with the state of Washington, for the use and benefit of all laborers, mechanics, subcontractors and materialmen and all persons who shall supply such person or persons or subcontractors with provisions and supplies for the carrying on of the work covered by the contract entered into on the 7th day of October, 1915, between the above bounden principal, Beers Building Company, and the said state of Washington, for the plumbing and heating system of the Administration Building for the State Institution for the Blind at Vancouver, Washington, according to the terms and conditions of said contract.

because of the failure of Beers Building Company to pay them according to the terms of their contract; Beers Building Company having received, at least, $1,750 on May and prior installments upon its contract with the state, no part of which was paid by it to Musgrave and Blake. For this reason Musgrave and Blake quit the work the last of June, 1916, leaving it uncompleted. Beers Building Company having neglected to proceed with the work, the Board of Control declared its contract forfeited and at an end, and after tendering the completion of the work to the casualty company, as surety, and it also neglecting to proceed with the work, the Board of Control caused the work to be completed. The work and material furnished by Musgrave and Blake, including that furnished to them by the Crane Company, less the payments made to them by Beers Building Company, amounted to $130.62 in excess of the amount due Crane Company, measured by the terms of Musgrave and Blake's contract with Beers Building Company and was reasonably worth that amount. No formal writ"And the conditions of this obligation are such that if the said principals shall faithfully per- ten consent was ever given by the Board of form all the provisions of said contract not in Control or the casualty company to the mak conflict with said chapter 28 of the Laws of ing of the subcontract between Beers Build1915, and pay all laborers, mechanics, and sub- ing Company and Musgrave and Blake. That contractors and materialmen, and all persons who shall supply such person or persons, or contract was never recognized by the Board subcontractors with provisions and supplies for of Control or its architect as in any sense a the carrying on of such work then substitution for the contract between Beers this obligation shall be null and void; otherwise Building Company and the state. In other to remain in full force and effect." words, the state at all times looked to Beers Building Company for the completion of its contract, and, in so far as the Board of Control or the state's architect directed Musgrave and Blake in the performance of the

*

On November 19, 1915, Beers Building Company entered into a contract with the defendants Musgrave and Blake by which they were to furnish the labor and material for

and to construct the plumbing and heating system as contracted for by Beers Building Company with the state. Musgrave and Blake were to receive from Beers Building Company as compensation therefor the sum of $7,000, payable in monthly installments as the work progressed, on the basis of 80 per cent. of the value thereof, the balance to be paid in 30 days following the completion of the work, but all such payments to be made after monthly payments made by the state to Beers Building Company on its contract. By the terms of the original contract and sub

work, such direction was to Musgrave and Blake merely as the representatives of Beers

Building Company.

[1] It is contended in behalf of appellant its bond to either Musgrave and Blake or casualty company that it is not liable upon Crane Company, because neither it for the state consented in writing or otherwise to the making of the subcontract between Musgrave and Blake and Beers Building Company. Many authorities are cited and reviewed by counsel to support the proposition that the stipulation in the contract between Beers

contract the work was to be completed by Building Company and the state that it September 15, 1916. The work was to be should not "assign" or "sublet" the contract, done under the supervision of the state's architect, who was also to make the estimates consent of the "Board of Control and the or any portion thereof, without the written for the monthly payments as the work pro- bonding company," is a valid and binding gressed. Musgrave and Blake proceeded with the work under their contract, and between sake of argument, yet we think this falls far stipulation. We may concede this for the February 1 and June 28, 1916, Crane Com- short of calling for a holding in this case that pany furnished to them plumbing goods and the casualty company is not liable upon its supplies for the work of the reasonable value bond to both Musgrave and Blake and Crane of $3,207.93, of which there remains unpaid and due to the Crane Company the sum of Company. Reading this stipulation in the $2,190.99. All of this material was furnished contract between Beers Building Company by Crane Company for and actually went into and the state in the light of the express conthe construction of the plumbing and heating ditions in the bond and the statute in pursusystem of the building and was suitable ance of which the bond was executed, it therefor. Musgrave and Blake did not com- seems to us that the stipulation means nothplete the work, but their failure to do so was ing more than that no assignment of the con

tract and no subcontract made thereunder pellant casualty company that there was no without the written consent of the Board of Control and the bonding company shall be of any avail in the working of a change in the contractual relations and the obligations arising thereunder as between the state, Beers Building Company, and the bonding company which should thereafter become surety upon the bond. In other words, this provision we think means only that there shall not be any substitution of parties in place of Beers Building Company in its contract with the state releasing that company from any obligations under its contract without the consent of both the state and the bonding company which should thereafter become surety upon the bond. Apparently, this stipulation was to guard against the possibility of an impairing of the rights of the state against Beers Building Company and the surety and also

privity of contract between Crane Company and Beers Building Company rendering it liable upon its bond to Crane Company. What we have already said seems to us to effectually answer this contention, in view of the express provisions of the statute and the bond. The Supreme Court of the United States, in Hill v. American Surety Co., 200 U. S. 197, 26 Sup. Ct. 168, 50 L Ed. 437, seems to take the view that a surety upon a bond executed under a statute seemingly less comprehensive in terms than ours is liable to those furnishing material even indirectly through a subcontractor to the contractor, though the statute and bond given in pursuance thereof did not expressly so provide, but provided only for the payment by the surety to persons supplying the contractor with labor or material. That case was originally determined in the superior court pairment of the rights of those for whose for King county in this state, and there bebenefit the bond should be given, as against ing less than $200 involved, and that court the surety thereon. There was no effectual assignment or sub-being by our Constitution the court of last letting of the original contract in this sense,

render certain that there should be no im

because the subcontract was not consented to by either the state or the casualty company, and, besides, it seems quite apparent to us that there was no intention on the part of Beers Building Company and Musgrave and Blake that there should be any assignment or subcontract in this sense. This seems plain from a casual reading of the subcontract entered into between them. The state, as contemplated by the terms of this contract, was to pay Beers Building Company, and that company was to pay its subcontractors, Musgrave and Blake, just as it would pay laborers or materialmen. It is equally plain that the state never regarded this contract in any other light. The Board of Control continued at all times to look to Beers Building Company for the completion of its contract, until its rights thereunder became forfeited and were put an end to by the Board of Control because of its failure to perform its contract. We conclude therefore that Musgrave and Blake were never intended to become, and never did become, subcontractors within the meaning of the above-quoted provision in the original contract between Beers Building Company and the state, prohibiting the assigning and subletting of that contract by Beers Building Company without consent of the Board of Control and the bonding company. We are equally well satisfied that Musgrave and Blake did become and were intended by all parties to become subcontractors within the meaning of the bond and the statute in pursuance of which it was executed, and that Musgrave and Blake thereby became in legal effect the agents of Beers Building Company for the purchase of plumbing supplies for the carrying on of the work, in pursuance of which agency they purchased the material from Crane Company.

directly by writ of error to the Supreme

resort as to such cases, the case was taken

Court of the United States. It was a suit upon a bond given in pursuance of a federal statute entitled "An act for the protection of persons furnishing material and labor for the construction of public works" (Act Cong.

Aug. 13, 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1916, § 6923]), wherein it was provided that the bond should be conditioned that the contractor "shall promptly make full payments to all persons supplying it labor or materials in the prosecution of the work." The contractor sublet a portion of the work. The subcontractor employed Hill, who sought recovery upon the bond. It was argued that Hill did not come within the meaning of the statute and bond, in that he did not furnish work to the contractor because such work was not directly so furnished, but only to the subcontractor, and the statute was silent as to the furnishing of work or material to a contractor through a subcontractor. Disposing of this contention, Justice Day, speaking for the Supreme Court of the United States, said:

ute, in the light of which this bond must be "In view of the declared purpose of the stat read, and considering that the act declares in terms the purpose to protect those who have furnished labor or material in the prosecution of the work, we think it would be giving too narrow a construction to its terms to limit its benefits to those only who supply such labor or materials directly to the contractor. The obligation is to make full payments to all persons suption of the work provided for in said contract.' plying it with labor or materials in the prosecuThis language, read in the light of the statute, looks to the protection of those who supply the labor or materials provided for in the contract, and not to the particular contract or engagement under which the labor or materials were supplied. If the contractor sees fit to let the work to a subcontractor, who employs labor and buys materials which are used to carry out and fulfill the engagement of the original contract to

Our statute not only in express terms secures subcontractors, but in equally express terms it secures those who furnish "subcontractors with provisions and supplies for the carrying on of such work." We do not have to go even to the extent the Supreme Court of the United States did in the Hill Case in order to hold the casualty company liable to Crane Company in this case.

plied with the materials and labor for the ful-ning through their farm and the quieting of fillment of his engagement as effectually as he their title thereto as against the claim of would have been had he directly hired the labor the defendant county that the strip is a pubor bought the materials." lic highway, acquired by the continued adverse use thereof by the public for a period of more than ten years. Trial upon the merits in the superior court for Pend Oreille county resulted in findings and judgment denying to the plaintiffs the relief prayed for, and declaring that the public had acquired by prescription a highway along the strip in question to the extent of 12 feet in width, being 6 feet on each side of a described cen ter line following the center of the traveled tion of the cause the plaintiffs have apportion of the highway. From this disposipealed to this court.

Contentions are made by counsel for appellant casualty company against the judgment rendered in favor of Musgrave and Blake. It seems to us that these contentions present only questions of fact; that is, as to the amount due Musgrave and Blake and as to their being in default upon their

subcontract. We think the evidence fully warrants the conclusion that they were not in default and that they quit work only because Beers Building Company neglected to pay them according to the terms of their subcontract, and that the evidence also fully warrants the conclusion that Musgrave and Blake were entitled to receive from Beers Building Company the $130.62 awarded them in excess of the $2,190.99 awarded Crane Company who had furnished them plumbing supplies in the carrying on of the work. Both judgments are affirmed.

er than a road, in a popular sense; that is,
The way here in question is a trail rath-
it has been used by the public for travel
by means other than that by wheeled ve-
hicles.
white men about the year 1889, and has
It was commenced to be used by
been continuously used by the public ever
since. Prior to that time it was apparent-
ly used by the aborigines in their travels
north and south over the rough and moun-
tainous country in the extreme northeast
corner of the state. From 1889 to 1914 it
the town of Metaline, in Pend Oreille
was the only practicable way of travel from
county, north to and beyond the Canadian
boundary, and acquired the name of the

ELLIS, C. J., and FULLERTON, WEB- "Boundary Trail." During all of those years STER, and MAIN, JJ., concur.

(102 Wash. 184)

HAMP et ux. v. PEND OREILLE COUNTY. (No. 14458.) (Supreme Court of Washington. May 7, 1918.) 1. HIGHWAYS 5-ESTABLISHMENT BY PRETRAILS-"Go-DEVIL"-"HIGH

SCRIPTION
WAYS.

A highway may be established by prescription although it is not used for wheeled vehicles, but is merely a trail used by travelers on foot and on horseback, and for pack horses and "godevils," consisting of two poles attached to a horse with the ends dragging behind by which goods are carried (citing Words and Phrases, Second Series, Highway). 2. HIGHWAYS 14

it was the constant way of much travel by people on foot and on horseback, and of the transportation of goods by means of pack horses and by crude conveyances called "godevils," consisting of two poles attached one to each side of a horse with the ends dragging behind, somewhat like a sled, on which goods would be carried. The actual traveled trail consisted of little else than the part over which people and horses walked, and was some 18 and 24 inches wide, the "godevil" occupying a somewhat wider space. While the county never expended any money in the improvement of this trail, it was improved in some measure from time to time by those interested in its use, and in later years this improvement consisted in cutting out trees and brush to a width of some 8 feet. This was done across appellants' land, not only with their consent, but with their assistance to some extent. The trail seems to have been used somewhat less since 1914 than prior thereto because of the construction of another road, but it is still used, and necessarily so, by a number of settlers in the neighborhood, in going to and from their homes. It is plain from the eviA. C. Shaw, of Spokane, for appellants.dence that the use of the trail during all Charles Leavy, of Newport, for respondent. these years has been open and adverse to the rights of all owners of land across which

ESTABLISHMENT BY

PRESCRIPTION-WIDTH. Where a highway has been established by prescription the right of the public is not measured by the actual beaten path, but includes a width sufficient for the requirements of travel. Department 1. Appeal from Superior Court, Pend Oreille County; W. H. Jackson, Judge.

Action by Godfried Hamp and wife against Pend Oreille County. Judgment for defendant, and plaintiffs appeal. Affirmed.

PARKER, J. The plaintiffs, Hamp and it runs. wife, seek recovery of a strip of land run

[1] While this trail was not traveled over

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

tion, to the extent of at least 12 feet in width.

The judgment is affirmed.

ELLIS, C. J., and FULLERTON, MAIN, and WEBSTER, JJ., concur.

(101 Wash. 572)

In re PETERS' ESTATE. NUHSE et al. v. PETERSON et al. (No. 14525.)

by wheeled vehicles, except possibly to a small extent in very recent years, it was, we think, nevertheless used as a highway because of its use for public travel in the way suited to the conditions there prevailing. Travel and transportation of goods by wheeled vehicles is not the only use to which a highway may be put. One walking or riding horseback, or transporting goods by pack horse, over a way which the public is constantly using, is a use of such way as a highway, in a legal sense. 13 R. C. L. 17; 37 Cyc. 15; 1 Elliott, Roads & Streets (3d Ed.) 4; 2 Words and Phrases, 882. This being the law, it seems to follow as a matter of course that a highway of the nature here in question can be established by prescription as well as if it were used by wheeled vehicles. The contentions made in behalf of appellants that the use of this trail has not been such as to result in the public acquiring a highway along it by prescription, we the southeast quarter of which his house was Where testator owned a quarter section, on think, is untenable in the light of the evi- located, his will granting 40 acres between his dence showing the facts as above summariz-northeast corner and the south line of an aded. Seattle v. Smithers, 37 Wash. 119, 79

Pac. 615.

[2] It is further contended in appellants' behalf that the trial court erred in decree

ing that the public had acquired a highway
along this trail to the extent of 12 feet in
width. The argument seems to be that the
public's right in this regard is measured by
the portion of the trail actually used for
travel; that is, the actual track or path
made by the walking of people and horses.
It seems to us that this contention is answer-
ed by our decision in Yakima County v. Con-
rad, 26 Wash. 155, 66 Pac. 411, and by our
later decision in Olympia v. Lemon, 93 Wash.
508, 161 Pac. 363. In the Conrad Case Judge
White, speaking for the court, observed:
"After the right to a highway has been ac-
quired by usage, the public are not limited to
such width as has actually been used. The
right acquired by prescription and use carries
with it such width as is reasonably necessary
for the public easement of travel, and the width
must be determined from a consideration of the
facts and circumstances peculiar to the case.
Whatever may be the width in any particular
case, the easement, when acquired by user,
cannot be limited to the actual beaten path.
Whitesides v. Green, 13 Utah, 341, 44 Pac.
1032, 57 Am. St. Rep. 740; Elliott, Roads &
Streets (2d Ed.) § 174, and cases cited. It is
generally a question of fact to be determined
under the circumstances of each particular case,
and the easement may be as broad as the public
require for passing as well as traveling in one
direction. Davis v. Clinton, 58 Iowa, 389 (10
N. W. 768)."

See, also, Montgomery v. Somers, 50 Or. 259, 90 Pac. 675; Marchand v. Town of Maple Grove, 48 Minn. 271, 51 N. W. 606; Arndt v. Thomas, 93 Minn. 1, 100 N. W. 378, 106 Am. St. Rep. 418, 2 Ann. Cas. 972.

(Supreme Court of Washington. April 27,
1918.)

1. WILLS 440-CONSTRUCTION.
The testator's intention must be gathered
from the language of the will, construing all
of its provisions together.
2. WILLS
CREATED.

561(1)-CONSTRUCTION-ESTATES

jacent section to the north should be construed
to grant the northeast quarter of the quarter
section owned by testator.
3. WILLS

WORDS.

462-CONSTRUCTION-SUPPLYING

where it is evident the testator has not express-
Omitted words will be supplied in a will
ed himself as he intended.
4. WILLS

440-CONSTRUCTION-INTENT.

A court is bound to give that construction to a will which will effectuate the intention of the testator if such intention can be gathered from the terms of the will itself, and the intention is to be gathered from everything contained within the four corners of the instrument. 5. WILLS 449-CONSTRUCTION - PARTIAL INTESTACY.

In the absence of residuary clause, and where the testator's intention can be gathered from the will, a construction causing partial intestacy should not be given to the will. 6. WILLS 448-RIGHT TO MAKE WILL.

The right to dispose of one's property by will is a valuable right, and will be sustained when possible.

7. WILLS 561(1) CONSTRUCTION - LANDS COVERED.

Where testator owned a section through which, diagonally crossing the northwest quarter and the southeast quarter, a road ran, and he devised to one person property "on the east side of the northwest quarter," and to another the southeast quarter, and to another the southwest quarter, and also "all left of the northwest quarter," the first devisee took the northeast quarter and that part of the northwest quarter east of the road, and the third devisee took the southwest quarter, and that part of the northwest quarter west of the road. Ellis, C. J., dissenting.

Department 2. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge.

Petition by John Nuhse and Henry Hoffman for the construction of the will of John J. Peters, deceased, against Mrs. Anna Peterson and Mrs. Mark Bartlett. To review the decree rendered, petitioners appeal. Re

It seems quite clear to us that the use of this trail was such as to warrant the trial court in concluding that the public had acquired a highway right therein by prescrip- versed and remanded.