Hilliker v. Francisco

Henry, J. i. mechanics’ Say appeaffrom Ss pro^erty?ulst The First National Bank of Kansas City was> ^ plaintiffs, made a defendant, but they now insist that the bank has no right of appeal from the judgment against its property. [603] Sec. 9, page 910, Wag. Stat., provides that “ in all suits under this chapter, the parties to the contract shall, and all other persons interested in the matter in controversy and the property charged with the lien may be made parties, but such as are not made parties shall not be bound by any such proceedings.” Respondents contend that the bank was not a necessary party to the proceedings, and therefore has no right to appeal from the judgment. Although not a necessary party, it will not be denied that the bank was a proper party. Virtually there are two causes of action stated in the petition; one against the contractors, to which the owner is neither a necessary nor a proper party; the other against the owner to subject its property to the payment of the contractor’s debt, and the bank would not have been bound by the judgment enforcing the lien against its property, unless made' a party to the proceedings. A demurrer for misjoinder would not have been sustained; section 9 recognizes the propriety of making the owner a party, and provides, what would have been the law if no such provision had been inserted, that the owner shall not be bound by the judgment, unless made a party to the proceedings. It would be an anomaly if the bank, by being made a party, would be bound by the judgment against its property, and yet could not appeal from that judgment, however erroneous. We think that the appeal was properly allowed. 2. account filed FOR MECHANICS’ lien. The account filed with the clerk, under the circumstances, was specific enough. The only item about which there can be any doubt, is the first, for stone , , „ furnished bank building as per contract, &c. There was evidence tending to show, not only that the bank was apprised of the terms of the contract between the contractors and plaintiffs, but had agreed with the contractors to the sum of $7,000.00, as compensation to plaintiffs for the labor and materials mentioned in the first item. [604] 3Snd?vSuaiincoii-partiesetosuitee: i. partnership, uaiEdeksndlvl<i [603] The court below held, that inasmuch as the contract for the stone work was made with R. W. Hilliker and J. [604] Kinney, defendants were estopped from showing that Phelps was jointly interested with them in the contract, and that, therefore, defendants could not avail themselves of the settlement made with Kinney by the bank, whether the demands of the bank, so settled, were against Hilliker, Kinney and Phelps, or not. The written agreement was not made with the firm of Hilliker & Kinney. If it had been, evidence would have been admissible to show that Phelps was their co-partner. Such.proof would not have been contradictory of b ut consistent with the written contract. Having been made with the individuals, N. "W. Hilliker and Joel Kídney, Phelps could only have had an equitable interest in the contract. If there was a firm of Hilliker & Kinney, of which he was a member, and the work contracted for was in the line of the partnership business, or if there was an understanding between him and Kinney and Hilliker, that he should be jointly interested, he would have had his remedy against them, but the fact that he was their partner in business, or that they had agreed that he should be jointly interested with them in the contract, imposed no liability to him, upon the bank or the other defendants who might properly have denied that Francisco & Co., made any contract with Hilliker, Kinney & Phelps, if such a contract had been declared upon. The evidence to show that Phelps was jointly interested with Hilliker & Kinney in the contract sued upon, being inadmissible, the seventh instruction for plaintiffs was properly given; and it follows that the evidence to show that the claims of the bank against Kinney and Phelps, were partnership liabilities of the firm of Hilliker, Kinney & Co., of which Phelps was a member, was also properly excluded. Kinney had no right to appropriate assets of the firm of Hilliker & Kinney in payment of debts owing from the firm of Hilliker, Kinney & Co. But our statute makes such obligations joint and several, and it may be argued that they were also the debts of Hilliker and Kinney. That [605] is true, but not debts of the firm of Hilliker & Kinney, but debts for which they were individually liable. Kinney could not appropriate the assets of Hilliker & Kinney in payment of his individual indebtedness, nor could he apply them in payment of an individual indebtedness of himself and Hilliker. Partnership assets must first be applied in payment of partnership liabilities, and one partner has no authority to make a different disposition of them. He can only dispose of the assets of the firm in the transaction of firm business, and it was no part of the business of the firm of Hilliker & Kinney to settle the business of Hilliker, Kinney & Co., or the individual liabilities of R. W. Hilliker and Joel Kinney, unless they were also liabilities of the firm of Hilliker & Kinney. 5 measure op suerightofCrf°cotERY' The fourth instruction for plaintiffs is not objectiona ble. It does not assert that the bank is liable to plaintiffs ^01’ ^he price of the materials and labor agreed upon by the contractors and the plaintiffs, without regard to their actual value. There was no evidence introduced or offered to show that the work and materials were worth less than the contract price, and the question discussed by appellant’s counsel, and in the Pennsylvania cases cited by them, is not presented by the fourth instruction, or anywhere in the record, and therefore will not be determined in this cause. That an attorney is surprised by the rulings pf the court, or by instructions given, is no ground for a new 6. surprise. trial, but in this case, the only effect of the surprise alleged was to prevent defendants from offering the evidence, which in our view of the case, the court would have properly excluded. With the concurrence of the other judges, the judgment is affirmed. Arrirmed.