(dissenting in part) — I agree that the pivotal question before this court is whether this long-settled rule, in cases arising under RCW 39.08.010, should be applied to actions brought against a retention fund under RCW 60.28.010. However, I am constrained to hold that the present status of the law requires it should be so applied.4 The same parties find protection under virtually the same language in' both statutes. In one instance a bond is the fund set up to protect subcontractors and the public body, and in the other instance the bond is reinforced by a retainage fund held by the public body for its protection and for the protection of the subcontractors. I do not mean to infer, however, that the contract price may not also be the reasonable value of the materials. That determination is one of fact. Thus, the trial court erred in holding, as a matter of law, that plaintiff was entitled to its contract price rather than proceeding to a factual determination of the reasonable value of its materials. Summary judgment should not have been granted on this issue., I concur with the majority on the other issues presented.
Maryland Cas. Co. v. Tacoma, 199 Wash. 72, 90 P.2d 226, 123 A.L.R. 799 (1939); Puget Sound Bridge & Dredging Co. v. Jahn & Bressi, 148 Wash. 37, 268 P. 169 (1928); Bishop v. T. Ryan Constr. Co., 106 Wash. 254, 180 P. 126 (1919); Kongsbach v. Casey, 66 Wash. 643, 120 P. 108 (1912).