20 Kan. 147 | Kan. | 1878
The opinion of the court was delivered by
This was an action brought in Lyon county by the board of county commissioners of Barton county against P. B. Plumb and W. T. Soden on a certain penal bond executed by them. The petition below sets forth and alleges among other things the following facts: Said bond was executed by John McDonald as principal, and P. B. Plumb and W. T. Soden as sureties, and bound said McDonald, Plumb, and Soden unto said county of Barton in the penal sum of fifty thousand dollars, to be void however upon the condition that said McDonald should comply with all the terms of a certain written contract previously entered into between him and said board of county commissioners, whereby he agreed, for the consideration of $24,200 to furnish all the material and build a certain court-house within a certain time in said county of Barton. The petition also alleges that the county on its part complied with all the terms and conditions of said bond and said contract, but that McDonald did not comply on his part with all the terms of said contract. In great detail it alleges that he did not complete said building within the time agreed upon by the parties, nor at any other time; that he did not furnish sufficient material therefor, and that, although he furnished some of the material therefor, and did some of the work thereon, yet, that said material and said work were of an inferior quality, and were not such as were required by the terms of said written contract. The petition also alleges certain other facts tending to show the amount of
If the petition did in fact state more than one cause of action, as is claimed by the defendants, then the rulings of the court below were correct; but if it really stated only one cause of action, as is claimed by the plaintiff, then said rulings of the court below were evidently erroneous. We think the petition really stated only one cause of action. Houston v. Delahay, 14 Kas. 125, 130. (See also as throwing some light upon this question, the following cases, to-wit: Hibbard v. McKindley, 28 Ill. 240; State v. Davis, 35 Mo. 406; Fisk v. Tank, 12 Wis. 276, 298, 299; Roehing v. Huebschman, 34 Wis. 185, 187; Smith v. B. C. & M. Rld., 36 N. H. 458, 484; K. C. Hotel Co. v. Sigement, 53 Mo. 176, 177.) The defendants by executing the penal bond set forth in the petition, agreed and guaranteed in substance, that McDonald should build said court-house as he agreed to do; but McDonald failed. And this is what constitutes the plaintiff’s cause of action, and we think it constitutes only one cause of action. It is true, that McDonald did not wholly fail. He built a court-house or a part of a court-house; but he did not build the kind and quality of court-house which the parties agreed should be built; and evidently, his partial failure to build said court-house, his failure in some of the innumerable particulars in building the same, would not constitute a greater
There are several other facts alleged in the plaintiff’s petition, which do not go to make up or constitute the plaintiff’s cause of action, but are alleged merely for the purpose of giving a measure for the plaintiff’s damages, or special damages which have resulted from wrongs constituting the plaintiff’s cause of action.
The judgment of the court below will be reversed, and cause remanded with the order that said order of dismissal, and said order requiring the plaintiff to separately state and number the several causes of action contained in the plaintiff’s petition, be set aside, and that further proceedings be had in the case in accordance with this opinion.