City of Topeka v. Brooks

Citations

• 99 Kan. 643
• 164 P. 285

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sewer Contract — Partnership—Indemnity Bond — Fraud—Release of One Joint Debtor — Right to Pursue Other Wrongdoer. A city obtained a judgment against one member of a partnership for damages sustained by the fraudulent acts of the partnership and failure to complete a contract for the construction of a sewer. It released the judgment in a written instrument expressly reserving the right to sue the other partner and the surety on the contractors’ bond. Held,</p> <p>(а) that the release of the judgment against one of those jointly and severally liable was, in effect, a covenant not to sue, and did not prevent the city from subsequently prosecuting an action against the' other partner and the surety (Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784) ;</p> <p>(б) that a partial satisfaction of a judgment against one joint debtor and the release of the same will operate only as a payment pro tanto of the indebtedness of the other debtors.</p> <p>2. Same — Judgment AgaAnst One Joint Debtor — Tender of Amount Did Not Release His Joint Debtor. In a subsequent action brought by the city against the other joint debtors the defendants tendered to plaintiff and offered to pay into court the judgment against the other joint debtor, which had been released. Held, that defendants could not better their position by offering to pay the former judgment.</p> <p>3. Same — Judgment Against One Joint Debtor — Liability of Other Joint Debtors. In the first action.the city, in addition to the judgment which it released, obtained a judgment applying upon the indebtedness of plaintiff a claim which the city owed him personally, and upon which he had brought the action. Held, that as the defendants in the present action were given credit for the amount of this counter-claim, it was proper to render judgment against them for reasonable costs, attorneys’ fees and expenses incurred by the city in establishing its right to the credit.</p> <p>4. Same — Indemnity Bond