Doorley v. The Farmers and Mechanics Lumber Company

• Decision Date: 01 June 1896
• Docket Number: 90
• Citation: 4 Kan.App. 93,46 P. 195
• Parties: JOHN DOORLEY et al. v. THE FARMERS AND MECHANICS LUMBER COMPANY
• Court: Kansas Court of Appeals

46 P. 195

4 Kan.App. 93

JOHN DOORLEY et al. v. THE FARMERS AND MECHANICS LUMBER COMPANY

No. 90

Court of Appeals of Kansas, Northern Department, Eastern Division

June 1, 1896

Opinion Filed September 9, 1896.

MEMORANDUM.--Error from Wyandotte district court; H. L ALDEN, judge. Action by The Farmers and Mechanics Lumber Company against John Doorley and others on a bond. Judgment for plaintiff. Defendants John Doorley and George Gruble bring the case to this court. Affirmed. The opinion herein filed September 9, 1896, states the material facts.

Judgment affirmed.

Nathan Cree, for plaintiffs in error.

Moore & Berger, for defendant in error.

GILKESON P. J. All the Judges concurring.

OPINION

GILKESON, P. J.:

In 1889 Andrew N. Pettit was the owner of certain real estate in the city of Wyandotte, and entered into a contract with the Farmers and Mechanics Lumber Company for lumber and other building material to be used in the erection of two buildings thereon. To prevent the filing of mechanics' liens, he made, executed, and filed, on the 3d day of July, 1889, with the clerk of the district court of Wyandotte county, his bond, as provided by paragraph 4745, General Statutes of 1889, in the sum of $ 3,000. The Farmers and Mechanics Lumber Company performed its part of the contract, but Pettit failed to pay for the material so furnished, amounting to the sum of $ 400, and to recover this amount it brought an action upon the bond, making Pettit, Doorley and Gruble (as principal and sureties thereon) parties defendant.

Andrew N. Pettit made no appearance. Defendant James Doorley filed an answer of general denial, and further alleging, in substance, that on or about the 24th day of June, 1889, he signed said bond as surety, with the said Andrew N. Pettit as principal and one R. H. Corwin as a cosurety thereon, and, with said Corwin and the defendant Pettit, went to the clerk of the said district court and presented said bond so signed for approval and acceptance; that said clerk refused to approve the same, or to approve either said defendant or the said Corwin as sureties thereon, and then and there, without the knowledge and consent of said defendant, erased the name of said Corwin from the body of the said bond, and the signature of said Corwin therefrom, and then returned said bond to said Corwin; that thereupon said defendant understood and believed that all proceedings to execute the same as his bond were ended and terminated; that afterward one Cox came into possession of said bond, and, without the knowledge or consent of said defendant, procured the signature of the said George Gruble thereon, and presented the same to the clerk of said court, who then approved the same, but without having said defendant Doorley justify as surety or approving said Doorley as surety thereon; that all use of said bond, after the same was rejected by said clerk when presented with said defendant and said Corwin thereon, was unauthorized by said defendant and without his knowledge and consent; wherefore said defendant claimed to be released as surety thereon.

The defendant George Gruble answered said petition substantially as in the answer of said defendant Doorley, as above set out; and further stated and alleged, in substance, that when he, Gruble, signed said bond, he justified as a surety thereon and delivered it to one J. F. Cox, with directions to secure the justification of said defendant Doorley as surety thereon; that he at that time, having no knowledge of the prior rejection of said bond or the refusal of the clerk of said court to approve said Doorley as surety thereon, supposed that said bond was not to be approved without two approved sureties thereto; that afterward said Cox, without complying with his said directions, presented said bond to said clerk with said defendant Gruble's name thereon, who thereupon approved the same and filed it in his office; that he never authorized the delivery of said bond to said clerk by said Cox in violation of the instructions of said defendant, without the justification and approval of said Doorley as a surety thereon; wherefore said defendant claimed to be released from liability as said surety. The jury found as follows:

"Ques. Did Towner ever approve and accept Doorley as a surety or did he reject him? Ans. Yes, he approved him.

"Q. After the rejection of Doorley as a surety, did he think and understand that the proceedings to deliver the bond as his bond were ended? A. No.

"Q. After that time, did he ever intend that it should be delivered as his bond? A. Yes.

"Q. After that time, did he ever give any one any authority to use the bond as his and deliver it? A. Yes.

"Q. Did Gruble ever agree or expect to be alone bound? A. No.

"Q. Was Doorley insolvent when the bond was filed? A. We do not know.

"Q. At the time Gruble signed the bond and when it was delivered did he know of the rejection of Doorley as a surety? A. No.

"Q. When Towner accepted and approved the bond, did he have any authority from Doorley to do so? A. Yes.

"Q. When Gruble signed the bond did he know Doorley or have knowledge of his insolvency? A. No.

"Q. Did Doorley, after the rejection of the bond, leave the bond with Corwin, intending it to be used to get further sureties and then delivered as his bond? A. Yes.

"Q. Was the bond left in the possession of Pettit after its rejection by Towner? A. Yes, with...