22 Kan. 65 | Kan. | 1879
The opinion of the court was delivered by
On the 9th of April, 1873, the defendant
in error commenced his action against the plaintiff in error to recover an alleged balance of $667.50, with interest, for macadamizing Commercial street in said city, in 1872, under a contract between the parties to the action dated July 25th, 1872. On February 22d, 1877, an amended petition was-filed for work done, alleging the amount due; that the city had not collected from the abutting owners the cost of the maeadamization; that the work was performed in every respect in accordance with the plans and specifications of the-city engineer, and under his direction, and to his acceptance and satisfaction; that the defendant in error complied with all the conditions and specifications of the contract; that the-city did not perform its part in any respect, but wrongfully and negligently failed and refused to make the necessary assessments for the payment thereof or issue bonds therefor to-the contractor. On June 13th, 1877, the plaintiff in error filed its answer, containing a general denial; also, alleging that defendant in error failed to perform the contract on his-part, and that a settlement was had with him in December,. 1872, for all the work done by him, and that he was paid in full. A reply was filed June 19th, 1877.
At the June term, and on July 16th, 1877, the case came on for trial before the court and jury, and on July 17th, 1877, the jury returned a verdict in favor of the plaintiff for “$334, with interest from December 24th, 1872, at the rate
With this view of the questions of practice which have been presented, we can only consider upon the record whether the amended petition is fatally defective. This presents, mainly, the inquiry whether the only remedy of the defendant in error was by mandamus to compel the levy of a special assessment for the improvement, or the issue of bonds for the costs of such macadamizing.
This inquiry is virtually disposed of in favor of the right of the defendant in error to recover upon his claim against the plaintiff in error, by the case of the City of Leavenworth v. Mills, 6 Kas. 288, and the case recently decided of the City of Wyandotte v. Zeitz, 21 Kas. 649.
When the city of Atchison failed to levy a sufficient tax to pay for the work done, and refused to issue all the special assessment bonds to which the contractor was entitled, or otherwise provide any means for paying the balance due him,
We have examined all the other questions submitted, but in the condition of the record nothing further need be said. The judgment of the district court will be affirmed.