Cooke v. White Common School Dist

• Decision Date: 20 June 1908
• Citation: 111 S.W. 686
• Parties: COOKE et al. v. WHITE COMMON SCHOOL DIST. NO. 7 et al.
• Court: Kentucky Court of Appeals

111 S.W. 686

COOKE et al. v. WHITE COMMON SCHOOL DIST. NO. 7 et al.

Court of Appeals of Kentucky.

June 20, 1908

Appeal from Circuit Court, Barren County.

"Not to be officially reported."

Action against the White common school district No. 7 of Barren county to foreclose liens for material furnished C. B. Marr who built a schoolhouse for the district. The district made its answer a cross-petition against Marr and his sureties, W H. Cooke and others. From a judgment against the sureties for the amount of the claims subject to a credit of the amount found to be due by the district to Marr, the sureties appeal. Affirmed.

Sims &amp Grider and Duff & Hutcherson, for appellants.

Baird & Richardson and W. L. Porter, for appellees.

HOBSON J.

In August, 1905, the trustees of White common school district No. 7 in Barren county made a contract with C. B. Marr, by which he undertook to build for the district a schoolhouse for $1,980.30, and he executed to the trustees a bond with W. H. Cooke and others as his sureties for the faithful performance of the contract. Marr built the schoolhouse, and the trustees took possession of it, but a number of persons who had furnished Marr the materials for the house filed in the county clerk's office liens under the statute, and brought this suit against Marr and the school district to enforce their liens on the schoolhouse. The district made its answer a cross-petition against Marr and his sureties, praying judgment against them for the amount which Marr failed to pay the materialmen. The sureties filed an answer, in which they pleaded that the school trustees, after they signed the bond, had made other contracts with Marr, by which they had modified the original contract for which the sureties were bound, and thus released them from all liability. The trustees by their reply put in issue the allegations of the answer. They admitted owing Marr something over $400. He filed an answer, asserting that they owed him a larger sum than they admitted. Proof was taken on all the issues, and on final hearing the circuit court entered a judgment against the sureties for the amount of the claims against the house subject to a credit of $550, which he fixed as a balance due by the trustees to Marr. From this judgment the sureties appeal.

The contract was made between Marr and the trustees as a corporation representing the school district. The trustees could only bind the district by a corporate meeting held as provided by law. We do not find any evidence in the record that the trustees made with Marr any contract subsequent to the written contract sued on in any way affecting the rights of the sureties. When Marr built the foundation, one of the trustees refused to accept it, claiming that it did not come up to the contract. There was a dispute between the trustees and Marr as to whether the...