Kirk v. Goodwin

53 Kan. 610

• Court: Supreme Court of Kansas
• Decided: January 15, 1894
• Status: Published

Opinion

The opinion of the court was delivered by

HortoN, C. J.:

It appears from the record that Thomas A. Kirk and the various parties who have assigned to him their claims for material and labor had the opportunity, if they had any valid claims against John G. Goodwin, to recover personal judgments against him in the action brought by the Missouri Yalley Lumber Company against Lee Settle, John G. Goodwin, and others. They all filed answers and cross petitions in that case and recovered personal judgments against Lee Settle for all their claims, and also obtained a decree of foreclosure of their liens upon the premises purchased by Settle from Goodwin. That decree also barred Goodwin of all his rights in the premises. Under the facts disclosed, in connection with the former judgment, the trial court properly instructed the jury to return a verdict for Goodwin.

On the part of the plaintiff, we are referred by counsel to Bice v. Opera House Co., 96 Mich. 24. But in that case the contract between the contractors and the owner of the building provided that, in case the contractors neglected to supply the material for the opera house, the owner of the building had permission to do so, and deduct the costs of the same from any moneys due or to become due the contractors. In this case, Lee Settle was the equitable owner of the lots when he made his agreements with Kirk and others, and was indebted to Goodwin on his contract of purchase. Goodwin was not indebted to Lee Settle, and had no agreement with him to pay for materials or labor for the improvement of the lots. On the other hand, there was an express contract between Settle and Goodwin that the former would “ furnish to Goodwin receipted vouchers for all bills contracted for the material, labor and expenses of every kind incurred in making, the improvements.” In the Bice case, in the prior judgment rendered against the contractors, the opera house company was not a party, and the subsequent proceeding to obtain a lien upon the opera house had not resulted in a judgment against the company. The court therefore held, upon the facts disclosed, that the judgment against the contractors would not release the opera house company, unless there was a satisfaction of the same. Again, after Kirk and his assignors, recovered their personal judgments against Settle, and obtained, a decree of foreclosure of their liens, they collected various amounts upon their judgments. Their contracts with Settle, were single and indivisible. (See Madden v. Smith, 28 Kas. 798.)

The judgment of the district court will be affirmed.

All the Justices concurring.