14 Kan. 125 | Kan. | 1874
The opinion of the court was delivered by
It appears from the petition filed in this case, that one J. P. Taggart contracted in writing with defendant in error to erect and complete certain buildings within a stipulated time; that said Taggart and plaintiffs in error entered into a written undertaking with defendant in error, obligating that said Taggart should fully perform all the terms and conditions of said contract. The condition of such undertaking was as follows:
“The condition of this undertaking is such, that whereas,*129 said J. P. Taggart has entered into a written contract with said Mark W. Delahay, dated the 12th of May, 1873, but actually executed on the day of the date of this undertaking, for the erection of three dwelling-houses in the said city of Leavenworth: Now, therefore, if the said J. P. Taggart shall fully perform all the terms and conditions of said con-, tract, to be by him performed, and according to the plans and specifications attached to said contract, then this undertaking shall become null and void, otherwise the same shall be and remain in full force and effect,” etc.
The petition sets out both the contract and the undertaking, alleging that Taggart failed to comply with his contract, and asks a judgment against all the signers of the undertaking for the damages sustained by this failure. To this petition Houston and Larimer • separately demurred, first, upon the ground that there is an improper joinder of causes of action, one being a cause of action to recover damages for breach of contract, and another being upon a written undertaking to answer for the default of Taggart; second, that the petition does not state facts sufficient to constitute a cause of action against Houston and Larimer. The demurrers were overruled, and this ruling presents the only question in the ease.
The proposition of counsel is that the “ obligation of Taggart is primary and absolute, and that of the other defendants secondary and conditional;” that they are created by separate instruments, that of Taggart by the contract, and that of the others by the undertaking, and that these separate causes of action do-not affect all the parties. We are disposed to think this is not the correct view to be taken of this case. The pleader, it is true, in setting out the contract and the breach of it, sets out a cause of action against Taggart, and against Taggart alone- — a cause of action not limited in amount by the penalty of the undertaking, but extending to the full damages resulting from such breach. But this statement, it seems to us, is preliminary, and for the purpose of showing a default in the condition of the undertaking. All signed the undertaking, and all therefore assumed the
The judgment will be affirmed.