National Surety Co. v. Wyandotte Coal & Lime Co.

Citations

• 76 Kan. 914
• 92 P. 1111
• 1907 Kan. LEXIS 345

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Paving Contracts — Action on Contractor’s Bond for Material Furnished — Constructive Notice of Fraud. While one who with knowledge of the' fraud and illegality furnishes material to a contractor with a city to carry out. a 'paving' contract which was fraudulently procured and is illegal is barred from recovering from the, surety of the contractor for the material furnished, he is not, as between himself, and the surety company, bound or barred by mére constructive notice of such fraud or illegality. The knowledge which binds him must be actual, and so ample thát in furnishing material in furtherance of the unlawful contract he can be regarded as an active agent in promoting the fraud and illegality. (Bonding Co. v. Dickey, 74 Kan. 791, 88 Pac. 66.)</p> <p>2. -Proof that Material Was Used in Construction. The case of Rice & Floyd v. Hodge Bros., 26 Kan. 164, followed as to the strictness and extent of proof necessary to show that all the material sold and furnished by the claimants for the improvement was actually used in its construction.</p>