
    [No. 10052.
    Department One.
    January 17, 1912.]
    Carroll Kongsbach et al., Appellants, v. T. F. Casey et al., Respondents.
      
    
    Municipal Corporations — Improvements—Bonds of Contractors —Liability of Surety- — Statutes—Construction. A contractor on public work and his surety on a bond, given pursuant to Rem. & Bal. Code, § 1161, to indemnify laborers and materialmen, are not liable for wages due to a laborer under an agreement with a subcontractor in excess of tbe reasonable value of tbe services.
    Parties — Capacity to Sue — Minority of Plaintiff — Waiver of Objections. An objection to tbe minority of tbe plaintiff is waived by answer on tbe merits.
    Infants — Right to Sue — Guardian Ad Litem — Appointment. Tbe court should, at any stage of tbe proceedings, appoint a guardian ad litem, for infant parties, whenever their minority is made to appear.
    Appeal from a judgment of the superior court for Pierce county, Card, J., entered March 18, 1911, upon findings in favor of the defendants, in an action upon a bond of a contractor on public works.
    Affirmed in part and reversed in part.
    
      H. W. Lueders, for appellants.
    
      
      Reported in 120 Pac. 108.
    
   Chadwick, J.

N. C. Kongsbach took a contract from T. F. Casey, principal contractor, for the painting of a school building in the city of Tacoma, Washington. Kongsbach having failed to pay plaintiffs the amounts claimed by them to be due for wages, this action was begun against the principal contractor and his surety, under the statute, Rem. & Bal. Code, § 1161. Tony Kongsbach claims $187 to be his due and Carroll Kongsbach demands $105. Defendant Casey in his answer made proffer of $149 to Tony Kongsbach, and $80 to Carroll Kongsbach. These tenders being refused, the money was paid into the registry of the court, and the case proceeded to trial on the merits. The court found $149 to be due Tony Kongsbach, and gave judgment accordingly.

It is contended that the court erred in giving judgment on the quantum meruit, instead of upon the contract which it is alleged these plaintiifs made with the subcontractor. We think clearly that the defendants Casey and his surety should not be bound by the contract made with the subcontractor, unless it is made to appear that the services were reasonably worth the sum demanded. They were not in privity with the claimants and are entitled to make such defenses as are available, for their liability rests entirely upon the statute. Reid v. Berry, 178 Mass. 260, 59 N. E. 760, and Murphy v. Fleetford, 30 Tex. Civ. App. 487, 70 S. W. 989, are relied on by appellants to sustain their contention. But these cases are not in point. In each of them the right of recovery was made to depend upon an express contract with the owner of the property sought to be charged. The testimony as to the amount and value of the labor performed by Tony Kongsbach is conflicting, and we are not disposed to overrule the conclusion of the trial judge that he was entitled to $149 and no more.

It developed at the trial that Carroll Kongsbach was a minor of the age of twenty years; and upon motion of defendants, the case was dismissed as to him, although counsel for plaintiffs had moved the appointment of a guardian ad litem upon this fact being made to appear. In this ruling the court erred. It was held in Blumauer v. Clock, 24 Wash. 596, 64 Pac. 844, 85 Am. St. 966, that an objection to the minority of a party was waived by answering to the merits. See, also, Hale v. Crown Columbia Pulp & Paper Co., 56 Wash. 236, 105 Pac. 480. The appointment of a guardian ad litem is a- matter within the discretion of the court; and upon motion it became its duty to appoint a guardian ad litem, or allow the case to proceed as it had been begun. Judgments rendered for or against minors are not void, but voidable. No form of procedure is provided for the appointment of guardians ad litem. Consequently the court can, at any stage of the trial, where it appears that the justice of the case requires it, either upon motion of any of the parties or upon the request of the minor, appoint a suitable person to act for him. Nicholson v. Wilborn, 13 Ga. 467; Smith v. Minor, 1 N. J. L. 477; In re Sanborn’s Estate, 109 Mich. 191, 67 N. W. 128.

For this the cause will be reversed as to Carroll Kongsbach, and remanded with instructions to grant the motion of appellants for the appointment of a guardian ad litem, and to allow the case to proceed to judgment. The judgment is affirmed as to Tony Kongsbach.

Dunbae, C. J., Gose, Crow, and Parker, JJ., concur.  