Dickey v. United States Fidelity & Guaranty Company

• Citation: 193 P. 346,107 Kan. 605
• Decision Date: 06 November 1920
• Docket Number: 22,650
• Court: United States State Supreme Court of Kansas
• Parties: WALTER S. DICKEY, doing business as W. S. DICKEY CLAY MANUFACTURING COMPANY, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., Appellees

193 P. 346

107 Kan. 605

WALTER S. DICKEY, doing business as W. S. DICKEY CLAY MANUFACTURING COMPANY, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY et al., Appellees

No. 22,650

Supreme Court of Kansas

November 6, 1920

Decided July, 1920

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

INDEMNITY BOND--Public Improvements--Statute of Limitations. An action on a bond given under section 661 of the code of civil procedure is barred by section 662 thereof if commenced more than six months after the completion of the public improvement, although begun within six months after the acceptance of the improvement by the proper authority.

Charles S. Briggs, John G. Egan, both of Topeka, Alexander New, Arthur Miller, Edwin Camack, Maurice H. Winger, and John E. Taylor, all of Kansas City, Mo., for the appellant.

Eugene S. Quinton, of Topeka, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff seeks to recover on a bond given under section 661 of the code of civil procedure (Gen. Stat. 1915, § 7569), for material furnished to defendant James A. Pringle, who, under contract, built a sewer for the city of Topeka. Action was commenced to recover $ 3,118.48, of which $ 2,161.47 was afterward paid. Judgment was rendered against the plaintiff in favor of the United States Fidelity and Guaranty Company for $ 957.01 with interest thereon. The plaintiff appeals from the judgment against it and in favor of the United States Fidelity and Guaranty Company. Answers to special questions were returned by the jury as follows:

"1. State when James A. Pringle completed the work on Sewer No. 46 on his contract with the city of Topeka, giving the day, month and years? Ans. January 9, 1917.

"2. State whether or not all the materials claimed to have been furnished by plaintiff to James A. Pringle to be used in the construction of said Sewer No. 46 were in fact used by Pringle in the construction of said sewer; and if not, give the value of the material not used? Ans. No. $ 1,209.97."

On the facts stated therein these answers are conclusive if there was evidence to support them. Concerning the answer to the first question, the plaintiff in its abstract says:

"The evidence on the point of the date of the completion of the work by Mr. Pringle was in conflict, some of the evidence putting the date of the completion on January 9, 1917, and the evidence of the defendant Pringle putting it on January 12, 1917. The evidence, however, without contradiction, showed that the work was not accepted by the city engineer and by the mayor and board of commissioners of the city until January 11, 1917."

An examination of the abstract discloses that there was ample evidence to support the answer to each question.

The statute under which the bond was given, reads:

"That whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements." (Gen. Stat. 1915, § 7569.)

The bond reads:

"That we, James A. Pringle, of Topeka, Kansas, as principal, and the United States Fidelity and Guaranty Company, a corporation organized under the laws of the state of Maryland, as surety, are held and firmly bound unto the State of Kansas in the penal sum of one hundred twenty-five thousand eight hundred thirty-four and 89-100 (125,834.89) dollars, lawful money of the United States, for the payment of which we hereby bind ourselves, our heirs, executors administrators and successors, jointly and severally, firmly by these presents.

...