53 Kan. 610 | Kan. | 1894
The opinion of the court was delivered by
It appears from the record that Thomas A. Kirk and the various parties who have assigned to him their claims for material and labor had the opportunity, if they had any valid claims against John G. Goodwin, to recover personal judgments against him in the action brought by the Missouri Yalley Lumber Company against Lee Settle, John G. Goodwin, and others. They all filed answers and cross petitions in that case and recovered personal judgments against Lee Settle for all their claims, and also obtained a decree of foreclosure of their liens upon the premises purchased by Settle from Goodwin. That decree also barred Goodwin of all his rights in the premises. Under the facts disclosed, in connection with the former judgment, the trial court properly instructed the jury to return a verdict for Goodwin.
On the part of the plaintiff, we are referred by counsel to Bice v. Opera House Co., 96 Mich. 24. But in that case the contract between the contractors and the owner of the building provided that, in case the contractors neglected to supply the material for the opera house, the owner of the building had permission to do so, and deduct the costs of the same from any moneys due or to become due the contractors. In this case, Lee Settle was the equitable owner of the lots when he made his agreements with Kirk and others, and was indebted to Goodwin on his contract of purchase. Goodwin was not indebted to Lee Settle, and had no agreement with him to pay for materials or labor for the improvement of the lots. On the other hand, there was an express contract between Settle and Goodwin that the former would “ furnish to
The judgment of the district court will be affirmed.
