The Rock Island Lumber and Manufacturing Company v. Elliott

• Decision Date: 08 January 1898
• Docket Number: 10364
• Citation: 59 Kan. 42,51 P. 894
• Parties: THE ROCK ISLAND LUMBER AND MANUFACTURING COMPANY v. A. R. ELLIOTT et al
• Court: Kansas Supreme Court

51 P. 894

59 Kan. 42

THE ROCK ISLAND LUMBER AND MANUFACTURING COMPANY v. A. R. ELLIOTT et al

No. 10364

Supreme Court of Kansas

January 8, 1898

Decided January, 1898.

Error from Sumner District Court. J. A. Burnette, Judge.

Judgment affirmed.

Amidon & Conly, for plaintiff in error.

J. T Herrick, for the Board of Education.

OPINION

JOHNSTON J.

The Rock Island Lumber & Manufacturing Company brought this action to recover from the Board of Education of the City of Wellington $ 2,596.38. In its petition the Company alleged in substance that, on August 21, 1890, A. R. Elliott entered into a contract with the Board to furnish the material and erect a school house on ground owned by the Board; that Elliott purchased from the Company lumber and building material to be used in the erection of the school building, and which were so used, of the price and value of $ 6,049.93; that Elliott paid to the Company on this account $ 3,453.55, and that there remained due on November 18, 1891, for lumber and building material so purchased and used, $ 2,596.38. It was alleged that in contracting with Elliott the Board had wholly failed to take from him the bond provided for in paragraph 4747 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 96, § 35), and that Elliott became wholly insolvent, a fact not known to the Company until the material had been furnished. It was also alleged that the Board had not paid Elliott the full value of the labor performed and the materials furnished and used by him in the construction of the school building, and, further, that but for the neglect of the Board to take the bond from Elliott, the Company could have recovered payment of its entire bill against him, and that the failure and neglect of the school officers to take the bond had created a liability against the Board of Education to the full amount that remained unpaid on plaintiff's account. The District Court sustained a demurrer to the petition, and no amendment being made, gave judgment in favor of the defendant. Of this ruling the plaintiff complains.

The only question we have for consideration is whether the petition states facts sufficient to constitute a cause of action against the Board of Education.

There is no averment that the Board had failed to pay the contract price of the building, nor that it had ever agreed to pay plaintiff for the material furnished to the contractor. No steps appear to have been taken in order to secure a lien upon the building, but the plaintiff relies for a recovery against the Board upon its failure to require the contractor to give the statutory bond provided for in paragraph 4747 of the General Statutes of 1889. It provides:

"Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in...