12 Kan. 453 | Kan. | 1874
The opinion of the court was delivered by
In this case a preliminary question arises on the “case made.” The action was tried in the district court
The principal questions arise on the construction of a contract. Murphy & Ryan, sub-contractors, had a contract to furnish the material and do the stone work in the erection of a court-house at Eureka. They entered into a contract with
The next material inquiry is, as to the kind and amount of stone contracted for. The contract provided that Berry was to furnish “six hundred cords, more or less, of good stone sufficient for the erection and construction of a courthouse for the county of Greenwood, now in process of erection in the city of Eureka, except such quantity of limestone as may be required for the same; 200 cords of said stone shall be taken out and hauled from the quarries on the lands of E. Tucker and H. G. Bronson, and all of said stone shall be of good quality, such as shall be approved of by J. G. Haskell, Esq., the architect of said, court-house; and the party of the second part doth undertake to deliver all of the said stone on the said court-house grounds in the city of Eureka as fast and rapidly as the same may be required by the párty of the first part to be laid up in the wall.” There was also the provision heretofore quoted, that the stone was to be measured in the wall. Now the question is, whether this was a contract to deliver two hundred cords absolutely of the Tucker-and-Bronson stone, or to deliver only so much of said stone as might be necessary for use in the court-house. Obviously, as we think, the latter. The contract was on the face of it one to furnish the stone necessary for a certain building. It was to be delivered as fast as was required to
One other material inquiry remains. Subsequent to the breach of the contract by plaintiffs in error, and owing to some failure on the part of the original contractor, the defendants in error lost their sub-contract, and only completed the basement. This, it is insisted destroyed any claim for damages for failure to deliver the stone, except as to such amount as was used in the basement. This position is not tenable. When the plaintiffs in error broke their contract, the cause of action was complete, and the subsequent conduct of the
There are no other questions that are likely to arise on a new trial, presented in this record. The judgment of the district court must be reversed, and the case remanded for a new trial.