37 Kan. 110 | Kan. | 1887
The opinion of the court was delivered by
This was an action brought in the district court of Franklin county, by John Parkinson and Jonathan Parkinson, partners, doing business under the firm-name of J. Parkinson & Co., against H. B. Alexander as principal, and H. C. Cross, C. Hood and William Martindale as sureties, on a certain, bond given by them to the Kansas City & Emporia Railroad Company, under § 1 of ch. 136 of the Laws of 1872. (Comp. Laws of 1879, and of 1885, ch. 84, § 35.) No proper service of summons was ever obtained upon H. B. Alexander, and hence no proceedings were had in the court below as against him. As between the plaintiffs and the other defendants, Cross, Hood, and Martindale, the case was submitted to the court below upon an agreed statement of facts, and the court rendered judgment in favor of the defendants and against the plaintiffs for costs. The plaintiffs bring the case to this court for review.
The material facts of the case, briefly stated, are as follows: The Kansas City & Emporia Railroad Company let a contract to H. B. Alexander to grade its road-bed from Emporia to Ottawa, and took from him, as principal obligor, and the said Cross, Hood, and Martindale, as sureties, the bond sued on in this action. Afterward the contractor, H. B. Alexander, sublet eleven miles of the work to D. P. Alexander. Afterward the sub-contractor, D. P. Alexander, sublet separate portions of his work to R. T. Pepper, Lucky & Cook, and White and Douglas, respectively. It was the agreement among all the parties that the payments should be made monthly as the work progressed • that all payments for work
It was the agreement between the plaintiffs and the sub-sub
“Section 1. That whenever any railroad company shall contract with any person for the construction of its road or any part thereof, such railroad company shall take from the person with whom such contract is made a good and sufficient bond, conditioned that such person shall pay all laborers, mechanics and material-men, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons, or to any person to whom any part of such work is given, incurred in carrying on such work, which bond shall be filed by such railroad company in the office of the register of deeds in each county where the work of such contractor shall be; and if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.” (Comp. Laws of 1879, and of 1885, ch. 84, §35.)
A great deal has been said about contracts, agreements and other transactions taking place after the execution of the bond sued on. Now it is scarcely necessary for us to say that the obligation of the defendents, who are only the sureties on the bond, could not be enlarged by anything occurring subsequent to its execution. Their obligation was and is fixed by the bond itself, and not by any subsequent contracts, agreements, arrangements or transactions brought into existence by any person'or persons except themselves. We are simply to look to the bond to see what their obligation is, and then look to the facts occurring subsequently, to see whether there has been any breach of that obligation or not. We think there has been no breach.
It has been suggested that when the laborers received their goods, wares and merchandise from the plaintiffs they transferred their claims to the plaintiffs. This is not so, however, and it was never the understanding of the parties. It was the understanding of the parties that when the laborers received their goods, wares and merchandise from the plaintiffs, that the amount of the purchase-price thereof was a payment fro tanto of their claims against the sub-sub-contractors, Pep
We think no material error was committed in this case, and therefore the judgment of the court below will be affirmed.