Parkinson v. Alexander

• Decision Date: 09 July 1887
• Citation: 37 Kan. 110,14 P. 466
• Court: Kansas Supreme Court
• Parties: J. PARKINSON & CO. v. H. B. ALEXANDER, et al

14 P. 466

37 Kan. 110

J. PARKINSON & CO. v. H. B. ALEXANDER, et al

Supreme Court of Kansas

July 9, 1887

Error from Franklin District Court.

ACTION by J. Parkinson & Co. against H. B. Alexander as principal, and H. C. Cross and two others as sureties, on a certain statutory bond by them given to The Kansas City &amp Emporia Railroad Company. Trial by the court, upon an agreed statement of facts, at the September Term, 1885, and judgment for defendants. The plaintiffs bring the case here. The opinion states the material facts.

Judgment affirmed.

Jno. W Deford, for plaintiffs in error.

C. B Mason, and C. N. Sterry, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Franklin county, by John Parkinson and Jonathan Parkinson, partners, doing business under the firm-name of J. Parkinson & Co., against H. B. Alexander as principal, and H. C. Cross, C. Hood and William Martindale as sureties, on a certain bond given by them to the Kansas City & Emporia Railroad Company, under § 1 of ch. 136 of the Laws of 1872. (Comp. Laws of 1879, and of 1885, ch. 84, § 35.) No proper service of summons was ever obtained upon H. B. Alexander, and hence no proceedings were had in the court below as against him. As between the plaintiffs and the other defendants, Cross, Hood, and Martindale, the case was submitted to the court below upon an agreed statement of facts, and the court rendered judgment in favor of the defendants and against the plaintiffs for costs. The plaintiffs bring the case to this court for review.

The material facts of the case, briefly stated, are as follows: The Kansas City & Emporia Railroad Company let a contract to H. B. Alexander to grade its road-bed from Emporia to Ottawa, and took from him, as principal obligor, and the said Cross, Hood, and Martindale, as sureties, the bond sued on in this action. Afterward the contractor, H. B. Alexander, sublet eleven miles of the work to D. P. Alexander. Afterward the sub-contractor, D. P. Alexander, sublet separate portions of his work to R. T. Pepper, Lucky & Cook, and White and Douglas, respectively. It was the agreement among all the parties that the payments should be made monthly as the work progressed; that all payments for work done should be made upon estimates made by the railroad company's civil engineer; and that the contractor, H. B. Alexander, should have the right, as it was his duty under the law and under his bond, to pay or to see paid out of the funds due for the work done the wages of all laborers on the work, whether employed by the sub-contractor or by any of the sub-sub-contractors. The plaintiffs were merchants, selling goods, wares and merchandise at Pomona, Kansas, near where the grading was to be done, and where it was done, and they by agreement with the laborers and the sub-sub-contractors, Pepper and the others, and upon the orders of the said sub-sub-contractors, supplied goods, wares and merchandise to the laborers, and charged the amounts of the purchase-price therefor to the sub-sub-contractors, Pepper and the others, and these amounts were then charged by the sub-subcontractors, Pepper and the others, against the laborers respectively, on the monthly pay-rolls, made out by the sub-contractor, D. P. Alexander, and the sub-sub-contractors, Pepper and the others, under the head of "merchandise account," and these amounts, as so charged, were considered by all the parties as payments to the laborers of their wages to the extent of such amounts, and the pay-rolls were then placed in the hands of the contractor, H. B. Alexander, showing these payments. The railroad company's civil engineer made monthly estimates of the work done on each of the several sections of the work, and the amount due thereon, and H. B. Alexander then paid to each laborer the amount due him, as shown by the pay-rolls, which was the amount of his entire wages for the month, less the amount which the pay-rolls showed that he had already been paid in "merchandise," in the manner aforesaid; and then H. B. Alexander paid to the sub-contractor, D. P. Alexander, the remainder, as shown to be due him under his contract by the estimates of the railroad company's civil engineer. This was in accordance with the understanding and agreement of all the parties.

It was the agreement between the plaintiffs and the sub-subcontractors, Pepper and the others, that either the sub-sub-contractors, Pepper and the others, or the sub-contractor, D. P. Alexander, should pay the plaintiffs for their goods; and there was no contract on the part of the contractor, H. B. Alexander, to pay to the plaintiffs anything, or to pay to the sub-subcontractors anything. H. B Alexander has been paid in full by the railroad company for all the work done, and he has paid to all the parties respectively everything that he ever agreed to pay to any person. The laborers have also been paid their entire wages, and all that is due them. The subcontractor, D. P. Alexander, and the sub-sub-contractors, Pepper and the others, have also been paid in full, and all that is due them; and it was and is their duty to pay the plaintiffs for the goods, wares and merchandise furnished by the plaintiffs to the laborers upon the aforesaid agreement, but they have not done so, and the plaintiffs have not been paid; and this failure of payment on...