101 Kan. 66 | Kan. | 1917
The opinion of the court was delivered by
The city of Stafford entered into a contract for the construction of a waterworks system and electric-light plafit, to cost it $27,500. The contractor abandoned the work before completion, and his bondsman, the Fidelity and Deposit Company of Maryland, finished it. The Farmers National Bank of Stafford provided money for the payment of bills for work and material furnished to the contractor, amounting to $2000, under circumstances which it' maintained entitled it to
“Had these labor and material men retained their claims they would have been entitled to look to the city for their pro rata share of the contract price, but the city could not be held liable for more for it did not agree to pay more than the contract price. The excess is $1354.60, and it would not be fair or equitable for the bank to lose its entire claim or for the plaintiff to collect the full amount of its claim. The city, without authority and over the protest of the surety, paid the bank’s claim in full, and the surety company may rightfully look to it and to the bank for the difference between the $2000 and the pro rata portion thereof which would have been enforceable against the city by the original holders of the claims paid by the bank had they retained them. This amount can be ascertained if not readily agreed upon by the parties.” (Deposit Co. v. City of Stafford, 93 Kan. 539, 550, 144 Pac. 852.)
On the case being remanded, the district court held, in effect, that the bank’s proportion of the loss should be $489.55 and rendered judgment accordingly. The defendants again appeal, insisting that the bank should have been allowed to retain all of the $2000 excepting $93.89. The decision of the trial court was based upon an apportionment of the loss in accordance with the relative amounts claimed by the parties to the controversy at the time of the settlement. We think this adjustment prejudicial to'the rights of the bank. The city is a mere stakeholder in the matter. The dispute is between the bonding company and the bank. The total cost of the improvement turned out to be $28,854.60. The city’s liability was limited by the contract price of $27,500, and a loss to some one necessarily resulted. This court held that the bank should suffer a proportionate scaling down of its claim. But as the bank was held to stand in the shoes of the original claimants,
The judgment is reversed and the cause remanded with direction to-reduce the judgment in- favor of the bonding company to $93.89-and interest.