Mitchell v. Bronson
| Decision Date | 18 June 1897 |
| Docket Number | 103 |
| Citation | 49 P. 153,5 Kan.App. 818 |
| Court | Kansas Court of Appeals |
| Parties | DOUGLASS MITCHELL et al. v. RIPLEY & BRONSON |
June 18, 1897.
Error from Ford District Court. Hon. A. J. Abbott, Judge. Affirmed.
Judgment affirmed.
Sutton & McGarry, for plaintiffs in error.
W. H Robb, for defendants in error.
DENNISON P. J. Schoonover, J., concurring. Milton, J., having been of counsel, not sitting.
This is an action upon a statutory bond, brought in the District Court of Ford County, Kansas, by Ripley & Bronson, as plaintiffs, against Douglass Mitchell and others as defendants, to recover the sum of $ 280.72 and interest.
The petition alleges that Douglass Mitchell, W. G. Sherlock and James Langton were partners, doing business under the firm name of Douglass Mitchell & Co.; that as such firm they entered into a contract with the officers of the city of Kinsley, to erect and construct a system of waterworks for said city, consisting among other things, of what is known as a standpipe, water mains etc.; that they filed in the office of the clerk of the district court of Edwards County, Kansas, the bond provided for in paragraph 4747 of the General Statutes of 1889, and the remaining defendants were sureties upon said bond; that the plaintiffs Ripley & Bronson contracted to, and did furnish to, the firm of Douglass Mitchell & Co. certain materials for the erection of said waterworks; that on May 23, 1888, the plaintiffs and Douglass Mitchell & Co. had an adjustment of their accounts and agreed among themselves that the amount remaining due to Ripley & Bronson from Douglass Mitchell & Co. was the sum of $ 280.72, for which the said Douglass Mitchell & Co. gave to Ripley & Bronson an order upon the treasurer of the city of Kinsley; that said order was presented by plaintiffs to said city treasurer and payment was refused. The bond and order are both attached to the petition as exhibits, and made a part thereof.
The defendants in their answer admit the execution of the contract with the city, and also the bond, and allege that the materials furnished by the plaintiffs were furnished by them directly to the city of Kinsley, upon a written contract entered into by the plaintiffs with said city.
They also allege that it was further agreed that the amount paid plaintiffs by the city should be deducted from the contract price agreed upon by Douglass Mitchell & Co. and the city, but that the amounts so paid should be evidenced by an order from the defendants to the city, and in favor of Ripley & Bronson.
The case had twice before resulted in a mistrial by reason of the jury failing to agree. Upon this trial the plaintiffs introduced their testimony and rested. When the defendants offered to introduce their testimony the plaintiffs objected to the introduction of any testimony by the defendants, for the reason that the answer filed by them did not state facts sufficient to constitute a defense to the petition and allegations therein contained. The court sustained said objection. The defendants made application to amend their answer so as to show:
"That after the contract was made between said company and said city as alleged in plaintiff's petition, and after the execution of the bond sued on in this action, that said contract which is mentioned in said bond was so modified by agreement of the parties thereto, that the city was to furnish the materials for constructing said water-works and said company was only to furnish the labor therefor; which said contract so modified was duly executed."
The court refused to allow this amendment. Thereupon the court instructed the jury to return a verdict for the plaintiffs, which was accordingly done. Judgment was rendered against the defendants for $ 352.20, and they bring the case here for review.
The errors complained of and argued by the plaintiffs in error are upon the refusal of the court to permit the introduction of evidence to sustain the allegations of the answer, and upon the refusal of the court to permit the amendment to the answer to be filed.
The plaintiffs in error contend that the petition alleges First, that the action was commenced within six...
To continue reading
Request your trial
-
Wyoming Construction and Development Co. v. Buffalo Lumber Co.
...Co., 152 Mo. 1, 52 S.W. 595; Robeman v. Gaiser, 53 Neb. 424, 73 N.W. 923; Lamberton v. Shannon, 13 Wash. 404, 43 P. 336; Mitchell v. Ripley, 5 Kan.App. 818, 49 P. 153.) Inconsistent defenses are permissible. (31 Cyc. 150; Phoenix Ins. Co. v. Carnahan, 63 O. St. 258, 58 N.E. 805; Lake Shore ......
-
Kuchler v. Weaver
...ruling will not be reversed. Rogers v. Hodgson, 46 Kan. 276, 26 P. 732; Beecher v. Ireland, 8 Kan. App. 10, 54 P. 9; Mitchell v. Ripley et al., 5 Kan. App. 818, 49 P. 153; Brokaw v. Bartley, 9 Kan. App. 318, 61 P. 320; Robbins v. Barton, 9 Kan. App. 558, 58 P. 279; Clark v. Spencer, 14 Kan.......
-
Conwill v. Eldridge
...adhered to by the Kansas courts up to the present time. Osborne v. Shilling. 74 Kan. 675, 88 P. 258, 11 Ann. Cas. 319; Mitchell v. Ripley, 5 Kan. App. 818, 49 P. 153; Fetzer v. Williams, 80 Kan. 554, 103 P. 77; Felix v. Railway Co., 60 Kan. 467, 57 P. 128. ¶13 The case of De Lissa v. Coal C......
-
Chi., R. I. & P. Ry. Co. v. Mcculley
...sound judicial discretion of the court." ( Jantzen v. Emanuel German Baptist Church, 27 Okla. 473, 119 P. 1129; Mitchell et al. v. Ripley & Bronson, 5 Kan. App. 818, 49 P. 153.) ¶10 The fact that the car had been placed on the side track by the Frisco Company, and that track was used jointl......