Wallace Equipment Co. v. Graves , 132 Wash. 141 ( 1924 )

I cannot agree with the majority. In my judgment the question here is a simple one. The contract between the county and Graves, in apt and conclusive language, requires Graves to give a statutory bond. The surety company knew this fact beyond peradventure, as is demonstrated by the fact that it attached a copy of the contract to the bond, and thus established in this case that, following the usual practice of surety companies, it required a copy of the contract to be furnished to it before it bound itself. The contract, so far as the record shows, was never modified, changed or amended. No other bond was given, or attempted to be given, save the one now before us, and that it was given either in compliance with the terms of the contract or in defiance of such terms cannot be doubted. It is therefore self-evident that either the bond was given with the intent to comply with the contract and by mistake the wrong form was used, or there was, on the part of the surety company, a deliberate attempt to wrong the county and the persons who would have been protected by a statutory bond, and to violate the expressed terms of the contract by furnishing something other than the thing contracted for. Since fraud is not presumed, I conclude that, by an honest mistake, the wrong form was used in writing the bond, but this is no reason why the surety company should be permitted to reap the results of a successfully concealed fraud.

The law provides for the rectification of mutual mistakes and the reformation of instruments in which such mistakes are embodied. I would not read the contract into the bond, necessarily, but I would hold that possession of the contract was actual knowledge of its contents; and knowing what was required the surety company, without the consent of either party to the contract, should not, even by an honest mistake, succeed in palming off a spurious article. The contractor agreed to give a statutory bond; undoubtedly he made application to the surety company for such a bond; all parties intended such a bond should be given, and therefore it is such a bond. Our previous decisions support this view: Ihrig v. Scott, 5 Wash. 584, 32 P. 466;Wadsworth v. School District No. 1, 7 Wash. 485, 35 P. 371;Baum v. Whatcom County, 19 Wash. 626, 54 P. 29; Duke v.National Surety Co., 130 Wash. 276, 227 P. 2.

The judgment should be reversed.