35 Kan. 10 | Kan. | 1886
The opinion of the court was delivered by
“Another difficulty in the judgment as it stands is, that it makes a new agreement between the plaintiff and the railroad contractor. The foundation of the liability of the corporation is the debt due to the laborer from the contractor. In this case the contract was entire for the labor of the plaintiff, his man, and two teams; the debt is also entire, and arises out of the performance of that contract. Now it appears to me the • defendants caunot be made liable for a part of the services when confessedly they are not for another part, the whole being performed under one entire agreement. The true obligation of the contractor was to pay for the whole as a unit, and I do not see how this can be split into two parts for the purpose of enforcing one of them against the. company. The recovery against the corporation must be according to the agreement of the contractor, and his obligation arising under it to the laborer. If the laborer has so dealt with the contractor that any portion of an entire demand is not within the statute, then his remedy is against his employer alone upon his contract.”
(Atcherson v. Troy & Boston Rld. Co., 6 Abb. Pr. Rep. 329. See also Balch v. Railroad Co., supra.)
The judgment of the district court will be affirmed.