84 Kan. 587 | Kan. | 1911
The opinion of the court was delivered by
In June, 1907, the board of education of' Kansas City, Kan., entered into a contract with L. G. Ferguson for the erection of a school building at an agreed price. The United Surety Company became surety for Ferguson for the payment of claims for labor and material furnished. Carruth and McVey were stonemasons, and as partners took a subcontract for furnishing labor and material for the foundation of the building. They purchased their material from Barney & Roden. Ferguson defaulted in his payments, and, on October 2, 1907, Carruth and McVey went to the office of J. H. Luscombe, who was attorney for ■Barney & Roden, and had Luscombe prepare and file a lien statement in the name of Carruth. Carruth about that time went to southern Missouri and none of the interested parties knew where he was. On October 2, 1908, Luscombe brought this action in Carruth’s name to foreclose the lien and to recover from the surety company. While the suit was pending the surety company sent an attorney to Missouri, and, on April 2,1909, procured from Carruth an* affidavit stating that he had the subcontract' for the stone work individually; that-he had completed about one-fourth of his contract and was forced to abandon it; that Ferguson had paid him
The principal contention is that the court erred in setting aside the dismissal and reinstating the case. It is conceded that a motion of this kind is addressed to the discretion of the court, and. that such discretion will not be controlled unless manifestly abused. (Flint v. Noyes, 27 Kan. 351; Stouffer v. Harlan, ante, p. 307.) But it is seriously argued that the action of the court
“It simply opens up the judgment and the default, and allows the said defendants to answer, so that the merits of the action may be heard and considered, and the case disposed of on its merits. Courts will always, as far as they can, favor rulings that will allow cases to be disposed of on their merits, and will always, as far as they can, discountenance every attempt to prevent cases from being heard on their merits.” (p. 479.)
It is claimed that a demurrer to the evidence should have been sustained because there was no proof that the amount sued for was unpaid. It is conceded, however, that McVey testified to the amount he believed to be due and unpaid. He was a partner of Carruth, and this was understood by all the parties in interest; his name was originally in the contract.' It seems that Ferguson disliked him, and when the first bills were presented refused to pay them until his name was stricken out, but paid some of the money on the contract to McVey. The fact that McVey testified from his recollection as to what was due merely went to the weight of his evidence. It devolved'upon the defendants to produce evidence to show that the claim had been paid. The demurrer was properly overruled.
The defendants requested an instruction to the effect that, if the receipt was obtained from Carruth and executed by him in consideration of the amount due him from Ferguson, then the verdict should be for the defendants. There could be no question that it was
The judgment is affirmed.