
    [No. 9947.
    Department One.
    March 25, 1912.]
    Gate City Lumber Company, Respondent, v. The City of Montesano, Appellant.
      
    
    Municipal Corporations — Public Work — Failure to Take Bond —Liability for Material — Delivery—Evidence—Sufficiency. In an action against a city by a materialman to recover for lumber sold and shipped to the contractor, the city having failed to take a bond for the protection of materialmen, the plaintiff is not precluded from recovery by the fact that the actual delivery of the lumber from the cars to the work was made by the employees of the contractor, where it sold and delivered the same to the contractor for use in such work, and it was actually used therein.
    Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered June 20, 1911, upon findings in favor of the- plaintiff, in an action to recover for lumber sold for use in a public improvement.
    Affirmed.
    
      O. M. Nelson, for appellant.
    
      W. H. Abel, for respondent.
    
      
      Reported in 122 Pae. 26.
    
   Per Curiam.

This action, which was commenced by Gate City Lumber Company, a corporation, against the city of Montesano, the Montesano Planing Mill Company, a corporation, and George Everett, its receiver, to recover the purchase price of lumber sold, and to establish the statutory liability of the city therefor, has heretofore been in this court, and a statement of the issues may be found in our former opinion reported in 60 Wash. 586, 111 Pac. 799. After remittitur, the cause was again tried for the sole purpose of ascertaining the value of the material actually used in the performance of the contract, or that was delivered at the work. The trial judge found that 65,294 feet of lumber, of the total value of $587, had been so delivered, and entered judgment for that amount, with interest thereon. The city has appealed.

The controlling question on this appeal is whether the findings are sustained by the evidence. We think they are. It was clearly shown that three carloads of lumber had been sold to Montesano Planing Mill Company by respondent; that it had been shipped to Montesano; that 65,294) feet thereof had been delivered at the work, at the place where the Planing Mill Company was performing its contract with the city, and that it was thus delivered for use in filling the contract. Appellant contends that the men who did the hauling from the cars were employees of the Planing Mill Company; that respondent only made its delivery on the cars at Montesano, and that it did not actually deliver the lumber at the work. The questions to be determined were whether the material was sold by respondent for use in the contract, and whether it was actually delivered at the work for such use. It was so sold and delivered, and the mere fact that the teamsters who did the hauling were employed by the contractor, would not deprive respondent of its right of recovery herein.

The judgment is affirmed.  