Heery v. J.L. Mott Iron-Works Co.

• Decision Date: 30 October 1900
• Citation: 62 P. 904,10 Kan.App. 579
• Parties: HEERY et al. v. J. L. MOTT IRON-WORKS CO. et al.
• Court: Kansas Court of Appeals

62 P. 904

10 Kan.App. 579

HEERY et al. v. J. L. MOTT IRON-WORKS CO. et al.

Court of Appeals of Kansas, Northern Department, Western Division

October 30, 1900

Error from district court, Shawnee county; Z. T. Hazen, Judge.

Action by the J. L. Mott Iron-Works Company, a corporation, against A. H. Nooney and others. There was a judgment for plaintiff and defendants Michael Heery and others bring error. Affirmed.

Wheeler & Switzer, for plaintiffs in error.

Valentine, Godard & Valentine and Quinton & Quinton, for defendants in error.

OPINION

PER CURIAM.

This action was instituted in the trial court by the J. L. Mott Iron-Works Company against A. H. Nooney and Thomas Heery co-partners under the firm name of the Topeka Co-operative Steam & Plumbing Company, as principals, and Michael Heery, C. A. Fellows, F. E. Van Sant, and Samuel T. Howe, as sureties, for the recovery of the amount due plaintiff for a certain bill of goods sold and delivered to the principal debtors. The plaintiff’s petition was in the usual form, and prayed judgment for the amount due. The answer was a general denial. A trial was had to the court, without a jury, upon the pleadings and an agreed statement of facts. The trial court found in favor of the plaintiff, and rendered judgment against the defendants for the amount found due, $595, and costs of suit. The sureties excepted, and as plaintiffs in error present the record here for review.

The agreed statement of facts, so far as necessary to an understanding of the case, is in substance as follows: About the 15th day of July, 1895, the above-named defendants in error, A. H. Nooney and Thomas Heery, doing business as the Topeka Co-operative Steam & Plumbing Company, entered into a contract with Aldace F. Walker, John J. McCook, and Joseph C Wilson, as receivers of the Atchison, Topeka & Santa Fé Railroad Company, by the terms of which it was agreed that said Topeka Co-operative Steam & Plumbing Company should build and complete the plumbing, steam heating, and sewerage of a certain depot and hotel located on said railroad, and being erected by the said receivers at La Junta, state of Colorado. At the time of making said contract the Topeka Co-operative Steam & Plumbing Company, as principal, and the plaintiffs in error in this action, as sureties, executed and delivered unto the receivers of the Atchison, Topeka & Santa Fé Railroad Company a bond for the purpose of securing the faithful performance of the contract of the Topeka Co-operative Steam & Plumbing Company, a copy of which bond was as follows, to wit: "Contractor’s Bond. Know all men by these presents, that the Topeka Co-operative Steam & Plumbing Company, as principal, and Michael Heery, Fellows & Van Sant, and Samuel T. Howe, as sureties, are hereby firmly bound unto Aldace F. Walker, John J. McCook, Joseph C. Wilson, receivers of the Atchison, Topeka & Santa Fé Railroad Company, a corporation duly organized under the laws of the state of Kansas, and doing business in said state, in the sum of three thousand six hundred dollars, lawful money of the United States, to be paid unto the said Aldace F. Walker, John J. McCook, Joseph C. Wilson, receivers of the Atchison, Topeka & Santa Fé Railroad Company, its successors or assigns, to which payment well and truly to be made we jointly and severally bind ourselves, our heirs, executors, administrators, and assigns, firmly by these presents. Sealed with our seals, and dated this 15th day of July, A.D. 1895. The condition of this obligation is such that whereas, the above-bounden the Topeka Co-operative Steam & Plumbing Company did, on the 15th day of July, A.D. 1895, enter into a contract in writing with the said Aldace F. Walker, John J. McCook, Joseph C. Wilson, receivers of the Atchison, Topeka & Santa Fé Railroad Company, whereby it agreed for a valuable consideration with the said Aldace F. Walker, John J. McCook, Joseph C. Wilson,...