[No. 8892.

Department Two.

November 15, 1910.]

#### P. J. Fransioli, *Respondent,*v. The City of Tacoma, *Appellant.**1*

Appeal — Review—Decision—Law oe Case. Upon tbe second appeal, the decision upon a former appeal is the law of the case.

Pleading — Answers—Denials. An answer admitting the receipt of a notice of demand against a city, as set up in one paragraph of the complaint, and denying all the allegations of another paragraph alleging a demand, is not sufficient to put the fact of notice and demand in issue.

Appeal from a judgment of the superior court for Pierce county, Shackleford, J., entered March 15, 1910, upon find7 ings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

Affirmed.

*T. L. Stiles, Frank R. Baker,*and *F. A. Latcham,*for appellant.

*Walter Loveday, Frank H. Kelley,*and *Raymond J. McMillan,*for respondent.

1

 Reported in 111 Pac. 564.

Dunbar, J.

The complaint alleged, in substance, that on the 30th day of March, 1907, the defendant city of Tacoma entered into a contract with defendants Thompson & Lang-ford to construct and complete certain improvements on F street; that on the same day the defendants Thompson & Langford and the defendant the Empire State Surety Company made and entered into a bond and agreement in writing, to the state of Washington, to secure the payment of all laborers, mechanics, and materialmen, etc., under the provisions of the statute; that thereafter, on the 13th day of May, 1907, Thompson & Langford made and entered into an agreement in writing with C. D. Elmore for the execution of a part of the work to be performed by the said defendants; that sub*464sequent to the making of the contract between Thompson & Langford and the city of Tacoma, the city, by its commissioner of public works, made a change in the plans and specifications under which the contract was to be executed, by the terms of which a concrete retaining wall was to be substituted for a retaining wall of wooden cribbing, as provided for in the original specifications for the said improvement ; that thereafter the plaintiff sold and delivered to said C. D. Elmore, subcontractor, a certain amount of cement of the value set forth in the complaint, to be used in the construction of the substituted concrete retaining wall; that the subcontractor, Elmore, was insolvent; that the work was to be performed under the supervision of the commissioner of public works of the city of Tacoma, and that, after the work was completed and accepted, demand was made for the value .of the material, which was refused, and suit was brought. All the defendants demurred to this complaint, and their demurrers were sustained. Upon appeal to this court, it was decided that the demurrers of Thompson & Langford and the Empire State Surety Company were properly sustained, but that the demurrer of the city was improperly sustained; and the cause was sent back for trial by the city; whereupon the city answered, denying the material allegations of the complaint. The cause was tried upon its merits, and resulted in a judgment for plaintiff, respondent here. From such judgment, this appeal is taken.

An examination of the record, which is not lengthy, convinces us that the material allegations of the complaint were proven beyond question; and while it is contended by counsel for appellant that the allegations of the complaint were not proven, the contention is, in effect, an argument against the soundness of the rule announced by this court on the former appeal, which opinion may be found in 55 Wash. 259, 104 Pac. 278. To ascertain the scope of that decision, we quote as follows:

“The demurrer of the city we think should have been over*465ruled. By the terms of the statute (Bah Code, §§ 5925, 5926, 5927), the city, on letting a contract for the grading of one of its streets, is obligated to take a bond from the contractor to pay the materialmen who furnish material for use in the making of the improvement, under the penalty of itself becoming liable for the cost of the materials so furnished. In the instant case, in so far as this concrete wall is concerned, the city stands in the position of having failed to require a bond to be furnished, as it suffered such a radical change to be made in the original plans as to relieve the bondsmen of their obligation to pay the costs of construction under those plans, and failed to take a bond to '■over the additional liability created by the change of plans. We are aware that the city contends that the commissioner of public works had no authority to allow a change in the plan of construction, and that, as a consequence, his acts in that regard are not binding on the city, and create no additional liability on its part. But an inspection of the specifications, which are set out in the complaint, show that the commissioner had general powers of supervision; that he was the person to whom the letting of the contract was intrusted; the person who had power to accept or reject bids for the work; the person with whom the surety bonds must be filed and approved; and the person who must finally approve the work. Moreover, the work was completed and accepted by the city according to the change in the plans, and clearly it is estopped to contend that the change was not authorized.”

This last announcement, in reference to the completion of the work, it is said by the appellant, was a mistake; that there was no allegation of that kind in the complaint, and that nothing of the kind was proven. Conceding, which is probably the fact, that this last statement was an inadvertence on the part of the writer of the opinion, it will be seen that this was not the controlling ground of the decision. The whole of appellant’s argument under the title of “Law of the Case,” is in opposition to this announcement of the court, so far as the responsibility of the city is concerned, and also precludes the contention that a bond was not required in this character of work.

*466So far as the demand is concerned, even if it could be concluded that a demand was necessary, we are unable to determine that this question was put very clearly in issue. In-paragraph 10 of plaintiff’s amended complaint, a copy of the notice of demand given to the city is set forth; and in paragraph 11 it is alleged that plaintiff demanded, etc. The-answer on this subject is as follows:

“Admits that plaintiff delivered a notice, a copy of which, is contained in paragraph 11 of said amended complaint, on or about February 27, 1906, and denies each and every other allegation in said paragraph contained. Denies each and every allegation in paragraph 10 of said complaint.”

It will be seen from the pleadings that the notice evidently referred to is a part of paragraph 10 instead of 11, and the-announcement that other allegations in that paragraph were-denied would naturally be considered as referring to paragraph 10, where the notice admitted was set forth. It was. probably not deemed that there was any denial of notice, as no contention of that kind was made below, it evidently being an afterthought.

The judgment is affirmed.

Rudkin, C. J., Mobbis, Cbow, and Chadwick, JJ., concur-