Main Street Hotel Company v. Company

• Decision Date: 08 February 1896
• Docket Number: 8003
• Citation: 56 Kan. 448,43 P. 769
• Parties: MAIN STREET HOTEL COMPANY, OF HORTON, v. THE HORTON HARDWARE COMPANY et al
• Court: Kansas Supreme Court

43 P. 769

56 Kan. 448

MAIN STREET HOTEL COMPANY, OF HORTON, v. THE HORTON HARDWARE COMPANY et al

No. 8003

Supreme Court of Kansas

February 8, 1896

Decided January, 1896.

Error from Brown District Court.

ON June 15, 1888, E. S. Malone contracted with the Main Street Hotel Company, a corporation, to furnish all material for and construct and complete a three-story brick hotel building with stone basement, on lots 39, 40, and 41, in block 10, in the original town of Horton, according to certain plans and specifications prepared by Eckel & Mann, architects, for the sum of $ 17,585.80, one-fourth of said amount to be paid when the basement walls were completed, one-fourth on completion of the roof, one-fourth when the plastering was done, and the remainder when the building was fully completed and accepted by said architects; and it was further agreed that Malone and his bondsmen should not be liable for any delays caused by the failure of the hotel company to make said payments. On the same day, Malone, as principal, and Hugh Caughey, as surety, entered into a bond to the hotel company in the sum of $ 5,000 for the performance of Malone's part of the contract. The basement walls were completed by August 27, 1888, when the first payment was made, amounting to $ 4,396.45. The roof was completed November 1, 1888, but the second payment was not fully made for want of funds on the part of the hotel company, but partial payments were made, and the work was carried on with a limited number of men. On January 5, 1889, the plastering was completed with the exception of the halls, which could not be properly plastered until the stairs were completed and some necessary patching, which could not be done until the building was nearly finished. The third payment was not made for lack of funds. The work was prosecuted with a small force, when the weather was suitable, until June 15, 1889 the president of the hotel company having personally guaranteed the wages of the workmen, who had refused to work unless the payment of their wages every Saturday night was guaranteed. At that time he notified Malone, in the presence of the workmen, that he would not be responsible for the payment of the men thereafter, and thereupon Malone abandoned the work and went to Denver, where he remained some months. Malone did not tell the men to stop work, but on Monday, June 17, upon the personal guaranty of the managers of the hotel company, three carpenters who had been working for Malone on the building continued the work, one of them acting as foreman, and in that capacity signing Malone's name to orders for wages, at the request of the hotel company, and the wages were paid by the company without authority from Malone. On August 28 the hotel company called on Hugh Caughey and notified him that they looked to him to complete the contract; but he refused to have anything further to do with it, and the company proceeded to complete the building, at an expense of $ 2,286.54, which was as low as it could reasonably be done at that time; but if money had been furnished to Malone before he abandoned the contract he could have completed it for $ 1,500 in addition to what he had expended. The building was completed in December, 1889.

Under subcontract with Malone, several parties performed work and furnished material for said building. The Horton Hardware Company, a partnership, commenced furnishing materials July 6, 1888, and continued to do so until June 20, 1889, before they learned of the abandonment of the work by Malone; but the items furnished from June 15 to June 20, inclusive, were insignificant in amount; and, on August 12, 1889, the company filed a mechanic's lien and gave notice thereof. Hugh Caughey furnished material from July 12, 1888, until June 13 1889, amounting to $ 5,820.28; and on August 7, 1889, he filed a mechanic's lien and gave notice thereof. Besides the foregoing, he advanced to Malone, for material, labor, etc., $ 5,108.70, and was reimbursed out of the first payment to the amount of $ 3,406.84, leaving a balance of $ 1,701.86, for which Malone gave him an order on the hotel company November 17, 1889, and the hotel company was then owing Malone more than that amount. The order was never returned nor paid by the hotel company. The Ambrose Manufacturing Company contracted for the iron work at $ 947, and all of the same, except $ 124 in value, was furnished between August 10, 1888, and September 29, 1888, which Malone partially paid, leaving a balance due on the part furnished of $ 643.63. The manufacturing company was ready to complete the furnishing of the materials according to contract when called upon by Malone according to their arrangements; but the remaining material was not called for, and, on August 3, 1889, the company filed a lien, and gave notice thereof. John Collins contracted to do the painting and furnish the material for $ 470. He worked 40 days, his wages being reasonably worth $ 2.50 per day, and furnished material worth $ 60, but work was done and material furnished amounting in value to $ 20 in August, 1889, before he knew of the abandonment by Malone, the last work being done August 20, 1889; and he filed a lien and gave notice thereof October 16, 1889. Malone furnished extra material and work of the value of $ 315.15. The hotel company paid to him and on his orders $ 11,046.03, and the total cost of the building up to its abandonment by Malone was $ 21,090.83, and $ 2,286.54 thereafter for its completion as hereinbefore stated. The labor and material were in substantial conformity to the contract.

On September 14, 1890, the Horton Hardware Company commenced this action to enforce its mechanic's lien, and the several lien claimants were thereafter brought into court where they set up their respective claims. On September 27 the hotel company caused to be executed, approved and filed a bond as...