"(3.) That on the said 29th day of May, 1893
J. L. Welshans and J. H. Dwelley, doing business as J. L.
Welshans & Co., as aforesaid, entered into a written contract
with Major C. F. Humphrey, quartermaster of the United States
army, to furnish all labor and material necessary to do and
perform all of the plumbing, steam heating, and gas piping in
all of the buildings then being erected by the United States
at Fort Crook, Sarpy county, Nebraska. * * *
"(4.)
That to secure the faithful performance of all of the
covenants, requirements, and conditions of said contract,
plans, and specifications the said J. L. Welshans & Co., as
principals, and defendants and David C. Patterson and Daniel
Keniston, as sureties, did, on the said 29th day of May,
1893, make, execute, and deliver their certain bond to the
United States in the sum of $ 11,708. * * *
"(5.)
That on the 2d day of August, 1893, the said J. L. Welshans
and J. H. Dwelley, doing business as J. L. Welshans & Co.,
entered into a contract for $ 6,355 with Major C. F.
Humphrey, quartermaster of the United States army, to furnish
certain labor and material in and about the construction of
certain other buildings at Fort Crook not included in the
contract, marked 'Exhibit A,' and on said date the
said J. L. Welshans and J. H. Dwelley, as J. H. Welshans & Co., made, executed, and delivered a bond to the United
States to guaranty the faithful performance of said contract,
which said bond was for the sum of $ 2,225, signed by
defendants Daniel Keniston and Josiah Kent as sureties; that
on September 11, 1893, the said J. L. Welshans and J. H.
Dwelley, as J. L. Welshans & Co., entered into a contract for
$ 1,331 with the said C. F. Humphrey, quartermaster of the
United States army, as aforesaid, to furnish certain labor
and material in and about the construction of a storehouse at
the quartermaster's depot at Omaha, Nebraska, and that to
secure the faithful performance of said last named contract
the said J. L. Welshans * * * made, executed,
and delivered to the United States a certain bond for $ 446,
which said bond was signed by defendants David C. Patterson
and Josiah Kent as sureties.
"(6.)
That after the execution of said contract between the United
States and Welshans and Dwelley, as J. L. Welshans & Co., as
aforesaid, on the 29th day of May, 1893, and hereto attached
as Exhibit A, the said J. L. Welshans & Co. entered into a
contract with the plaintiff whereby the plaintiff agreed to
furnish to the said J. L. Welshans & Co., to and for the
construction of the buildings at Fort Crook as aforesaid,
mentioned in Exhibit A, four boilers and necessary trimmings,
valves, water columns, gauges, cocks, grates, and all other
appurtenances thereto, according to the specifications
furnished, for the agreed price of $ 2,735; that the said
specifications, which were made a part of the contract
between J. L. Welshans & Co. and the government, provided
that the boilers should be paid for as soon as they were set
in place and accepted, and that the said J. L. Welshans & Co.
then and there agreed to and with the plaintiff that the said
plaintiff should be paid for the said boilers and other
materials so furnished, as aforesaid, out of and have a lien
upon the proceeds of said contract, and that as soon as said
boilers had been set in place and accepted by the United
States the plaintiff should receive the money accruing under
said contract therefor; that the plaintiff furnished said
boilers and other materials and delivered the same at Fort
Crook, Nebraska, on or about the 1st of July, 1894, but that
on or about the 10th day of September, 1894, the said boilers
and other materials so furnished by plaintiff were rejected
by the United States, as plaintiff was notified, upon the
ground that said boilers and appurtenances thereto did not
come up to the requirements of said specifications.
"(7.)
That on the 15th day of September, 1894, the said J. L.
Welshans & Co. became insolvent and notified
Major C. F. Humphrey, quartermaster as aforesaid, that they
would be unable to complete their contracts with the United
States; that on said 15th day of September the said J. L.
Welshans & Co. attempted to assign, and did assign, in so far
as they were able to do, to their said bondsmen, David C.
Patterson, Daniel Keniston, and Josiah Kent, defendants
herein, all of their rights, titles, and interests in and to
all of their contracts with the United States, together with
all moneys due or to become due upon said contracts, and gave
to their said bondsmen full right and authority to carry on
and complete said contracts in the place and stead of the
said J. L. Welshans & Co. as fully and completely as the said
J. L. Welshans & Co. could or would have done; that by the
terms of said attempted assignment the said David C.
Patterson, Daniel Keniston, and Josiah Kent were authorized
and empowered to collect and receive from the United States
all moneys then due the said J. L. Welshans & Co., together
with all sums that were to become due under their said
contracts, and were empowered, authorized, and directed to
proceed with the work under said contracts and to complete
the same in the place and stead of said J. L. Welshans & Co.;
that the said defendants David C. Patterson, Daniel Keniston,
and Josiah Kent accepted, affirmed, and ratified said
attempted assignment from
said J. L. Welshans & Co. to themselves, together with all
the conditions thereof, and immediately on the said 15th day
of September, 1894, took charge of the work under said
contracts for and in the place of the said J. L. Welshans & Co., and have ever since said time carried on the work under
said contracts, and are now carrying on the work under said
contracts, in the place and stead of the said J. L. Welshans & Co.
"(8.)
That at the time the said David C. Patterson, Daniel
Keniston, and Josiah Kent succeeded to said contracts by the
attempted assignment from J. L. Welshans & Co., as aforesaid
the boilers, together with the other materials furnished by
the plaintiff as aforesaid, to be used in the
construction of the steam heating plant in and about the
contract, hereto attached as Exhibit A, were on the grounds
at Fort Crook, but the same had been rejected by the United
States and no part of the same had either been received or
paid for, and were not at that time inwrought into the
building for the reason, as plaintiff was informed, that they
did not comply with the specifications; that afterward, and
for the purpose of completing the contract, the said
defendants David C. Patterson, Daniel Keniston, and Josiah
Kent, bondsmen and assignees as aforesaid, required plaintiff
to make certain changes in and about said boilers and other
materials, for the purpose of making the same conform to the
specifications; that the boiler fronts furnished by plaintiff
were adjudged not to be of the thickness required by said
specifications, and that the said David C. Patterson, Daniel
Keniston, and Josiah Kent caused other and different boiler
fronts to be provided, and those furnished by plaintiff were
returned to plaintiff and the difference between the price of
those furnished by plaintiff and those required by the said
bondsmen to be provided amounting to nearly $ 200, which said
sum was by the said David C. Patterson, Daniel Keniston, and
Josiah Kent charged back to the plaintiff upon their contract
with the said J. L. Welshans & Co.; that the said David C....
