Risse v. Hopkins Planing-Mill Co.

• Decision Date: 06 July 1895
• Citation: 55 Kan. 518,40 P. 904
• Parties: JOHN RISSE et al. v. THE HOPKINS PLANING MILL COMPANY et al
• Court: Kansas Supreme Court

40 P. 904

55 Kan. 518

JOHN RISSE et al. v. THE HOPKINS PLANING MILL COMPANY et al

Supreme Court of Kansas

July 6, 1895

Error from Wyandotte District Court.

ACTION by The Hopkins Planing Mill Company and another against John Risse and others upon a bond given by a contractor. Trial before Hon. N. H. LOOMIS, judge pro tem., without a jury. There was a decree adjudging certain claims to be liens on the property of said Risse, and he brings the case here. All the material facts appear in the opinion herein, filed July 6, 1895.

Judgment reversed and cause remanded.

E. J Wall, for plaintiff in error.

Scroggs & McFadden, for defendant, in error, F. G. Husson.

McGrew Watson & Watson, for defendant in error, Thomas Lloyd.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On October 5, 1889, P. T. Bolinger entered into a written contract with John Risse to construct a building upon certain lots belonging to Risse in Kansas City, Kan., and to furnish all the material and labor therefor. The work was to be done according to certain plans and specifications prepared by an architect, which were made a part of the contract, and it was provided that the architect was to determine all questions of doubt as to the meaning of the drawings or specifications, and that his decision should be final and conclusive. There was a further provision that if any alteration of the work was required, a fair and reasonable valuation of the work added or omitted should be made by the architect, and the sum agreed to be paid for the work should be accordingly increased or diminished; and in case they were unable to agree as to the valuation, arbitrators were to be chosen, and their decision with reference to the valuation of the work added or omitted was to become final and binding. It was agreed that the sum to be paid for the material and labor should be $ 3,275, subject. to additions or deductions on account of alterations. On the same day, and in pursuance of the mechanics' lien law of 1889, Bolinger, as contractor, executed a bond to the state of Kansas, with A. J. Hibbs and F. G. Husson, as sureties, which bond was on October 11, 1889, duly approved by the clerk of the district court of Wyandotte county. The bond recited that it was given in pursuance of the mechanics' lien law, and to secure compliance with the provisions of the contract between Bolinger and Risse; and provided that if Bolinger

"shall pay all claims which might be the basis of liens upon said described real estate and improvements for materials furnished, labor, or otherwise arising, or which may arise or grow out of said contract and the performance of and completion of said work thereunder or connected therewith, under the provisions of said act, then this obligation is to be null and void; otherwise, to be and remain in full force and effect."

Material was furnished and labor performed, in pursuance of the contract, for which payment was not made by Bolinger, and several of the parties who had furnished material and labor endeavored to obtain mechanics' liens upon the premises; and among others, Hibbs and Husson, who were sureties upon the bond, sought to obtain a lien upon the premises, as subcontractors, for material furnished by them. The Hopkins Planing Mill Company, which had an unpaid claim for material furnished, brought an action upon the bond, making the contractor and the sureties thereon parties defendant; and it also asked that it be adjudged to have a lien upon the premises in the event that the court should hold that it could not recover upon the bond. Other persons who had claims for material and labor were also made defendants, who set up other claims under the bond and upon the premises for labor and material furnished by them. On the trial, testimony was offered to the effect that during the construction of the building some alterations were made and some work done not provided for in the plans and specifications, and that the added work and material were of the value of about $ 300. The court found that by reason of these changes and alterations, without the knowledge and consent of the sureties upon the bond, such sureties were discharged from any liability thereon. The unpaid claims of the several claimants amounted to $ 2,103.46, and they were adjudged to be liens upon the property and improvements of Risse, and a foreclosure of the same was decreed. The statute under which the bond was given is as follows:

"The contractor or owner mentioned in section 1 of this act may execute a bond to the state of Kansas for the use of all persons in whose favor liens might accrue by virtue of this act, conditioned for the payment of all claims which might be the basis of liens; which bond shall be in a sum not less than the contract-price, and with good and sufficient sureties, whose qualifications shall be verified in accordance with § 723 of the...