National Surety Company v. Kansas City Hydraulic Press Brick Co.

Citations

• 73 Kan. 196
• 84 P. 1034
• 1906 Kan. LEXIS 229

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities — Paving Contract Held Void — Restricting Competition. Where a city council enters into a contract for paving the streets of a city with vitrified brick, and the petition, ordinance and contract provide that brick of a particular brand, manufactured and sold by but one person or company, shall be used, and other kinds of vitrified brick equally good for the purpose are made and sold in the vicinity by other companies, the proceedings to § pave and the contract are void under the provisions of section 747 of the General Statutes of 1901 requiring such contracts to be let to the lowest bidder, and contrary to public policy, in restricting and preventing free competition.</p> <p>2. - Petition for Improvements — Description of Material to be Used. The provision of section 730 of the General Statutes of 1901 requiring that the petition for such improvements shall state a specific description of the material to be used is fully complied with, in cases where vitrified brick is to be used, by the use of the words “vitrified brick,” followed by words describing the standard of quality desired.</p> <p>3. - Contractor’s Bond — Action against Surety for Material Furnished — Notice of Illegal Proceedings. When a contract entered into by a city for paving streets is void for the reason that no opportunity is given therein for free competition in the purchase of the materials used, all the proceedings are void, and persons who-furnish labor or material with full knowledge of the facts which constitute the proceedings illegal are bound thereby and cannot maintain an action against the surety of the contractor who has furnished a bond under the provisions of section 5130 of the General Statutes of 1901.</p> <p>4. -Answer Not Demurrable. In an action upon such a bond to recover for material furnished to a contractor and used in paving streets of a city, an answer which sets up the facts which render the contract between the city and the cont