The City of McPherson v. Stucker, 28,916

• Court: United States State Supreme Court of Kansas
• Writing for the Court: HARVEY, J.:
• Citation: 129 Kan. 262,282 P. 703
• Parties: THE CITY OF MCPHERSON, Plaintiff, v. STUCKER, STUCKER & STRACHAN, Copartners, Appellants; THE FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and THE CONTRACT WATERPROOFING COMPANY, Appellees
• Docket Number: 28,916
• Decision Date: 07 December 1929

282 P. 703

129 Kan. 262

THE CITY OF MCPHERSON, Plaintiff,
v.
STUCKER, STUCKER & STRACHAN, Copartners, Appellants;

THE FIDELITY AND DEPOSIT COMPANY OF MARYLAND, and THE CONTRACT WATERPROOFING COMPANY, Appellees

No. 28,916

Supreme Court of Kansas

December 7, 1929

Decided, July, 1929.

Appeal from McPherson district court; JOHN G. SOMERS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

INDEMNITY -- Actions -- Conclusiveness as Against Third Parties. When a party is sued in an action and the circumstances are such that a third party is liable over to defendant in event defendant is liable to plaintiff, and defendant notifies the third party of the action and requests him to defend, but he declines to do so, and the action proceeds to trial, resulting in a judgment against defendant, which he satisfies, and then seeks to recover from the third party, such third party is concluded by the judgment as to all material questions determined therein.

P. J. Galle, James Galle, both of McPherson, and C. A. Smart, of Lawrence, for the appellants.

F. O. Johnson, J. R. Rhoades, James A. Cassler, all of McPherson, and R. P. Williams, of St. Louis, Mo., for the appellee the Contract Waterproofing Company.

OPINION

[129 Kan. 263] HARVEY, J.:

This is an appeal from an order of the court overruling a motion for a judgment on the entire record.

In order better to understand the question presented by this motion the record of the case must be considered. That portion of the record pertinent to our present inquiry may be stated as follows: The city of McPherson, desiring to build a concrete waterproof tower for its system of waterworks, after having plans and specifications prepared for that purpose, let a contract for the work to Stucker, Stucker & Strachan, by the terms of which the contractors undertook, for an agreed consideration, to furnish all of the material and labor and to construct the water tower in accordance with the plans and specifications, and warranted and guaranteed that the tower when so constructed would not leak for a term of one year. The contractors gave the statutory bond, which was signed by the Fidelity and Deposit Company of Maryland as surety. The contract specified the particular kind of waterproofing to be used. This waterproofing is manufactured and applied to water towers by the Contract Waterproofing Company, of St. Louis. Stucker, Stucker & Strachan made a contract with the Contract Waterproofing Company by the terms of which the latter company agreed, for a named consideration, to furnish the labor and material and apply its waterproofing to the tower after it was constructed, and in this contract warranted and agreed that the waterproofing would hold water and would not leak for a period of one year, and to secure the faithful performance of its contract it executed to Stucker, Stucker & Strachan its bond, signed by the Fidelity and Deposit Company of Maryland as surety. The water tower was constructed by the contractors and the waterproofing applied by the subcontractor, but the tower did not hold water. The reason the tower would not hold water was thought to be in the waterproofing, and the Contract Waterproofing Company having been notified of that fact undertook to correct the trouble, but was unable to do so. After considerable effort to correct the trouble both the contractors and the subcontractor ceased further efforts, and the city of McPherson was compelled to, and did, let another contract, using different materials [129 Kan. 264] for the waterproofing of the tower, and was successful in having it hold water. The cost of this work to the city of McPherson was about $ 6,000. The city sued the contractors, Stucker, Stucker & Strachan, and their bondsman for the amount it had thus expended, and as a basis for recovery alleged that defendants "did put in a waterproofing which material was defective and inferior and not such as required by the plans and specifications; that the work in putting it on was done unskillfully and not properly put on and it peeled off and did not stay, and the standpipe did not hold and retain the water." Following the filing of this action, and before the issues therein were completed, Stucker, Stucker & Strachan, in writing, notified the Contract Waterproofing Company that the action had been filed and that the city predicated its right to recover upon the fact that the materials used in waterproofing the tower and the workmanship furnished by the Contract Waterproofing Company were inferior and unskilled, and specifically requested the Contract Waterproofing Company to come into said cause and defend the same, inasmuch as the city made no complaint of any part of the work except the waterproofing. The Contract Waterproofing Company declined to comply with that request. The city had not paid the contractors the full sum due them under their contract, and they counterclaimed for about $ 4,500 unpaid on their contract. They also took the position that since their contract with the city specified the character of waterproofing to be used on the tower, and that having been used, they were not liable for the defects in the tower resulting therefrom. [282 P. 704]

The case involving this last question reached this court ( City of McPherson v. Stucker, 122 Kan. 595, 256 P. 963; 123 Kan. 584, 256 P. 963), where it was held in effect that under the contract between the city and Stucker, Stucker & Strachan the contractors had guaranteed a water-tight structure, and that they...