
    W. W. Atkin et al. v. The Wyandotte Coal and Lime Company.
    No. 14,345.
    (84 Pac. 1040.)
    
      Demurrer — Action on a Surety Bond^ — Answer. In an action on a surety bond for material furnished to a contractor to pave certain streets, a demurrer to the answer was held to have be'en improperly sustained.
    Error from Wyandotte court of common pleas; William G. Holt, judge.
    Opinion filed March 10, 1906.
    Reversed.
    
      Frank Hagerman, and A. L. Berger, for plaintiffs in error.
    
      McFadden & Morris, for defendant in error.
   Per Curiam:

In this case the facts are substantially .the same as those in the case of Surety Co. v. Brick Co., ante, p. 196, except that in this case the court sustained a demurrer to the fifth count of the answer of defendants. In the other case plaintiff did not demur to this defense, and the only question remaining in this case, therefore, is whether the court should have sustained the demurrer to the fifth defense or fifth count of the answer, which set up as a defense that for the purpose of procuring signatures to the petition for paving, and to prevent competition in the prices charged for the brick used, the Diamond Brick and Tile Company secretly and fraudulently hired and paid numerous resident owners of the lots fronting upon the street to sign the petition, whereby there was procured what could not otherwise have been procured — a pretended majority of the feet fronting upon the street belonging to resident owners — and that the proceedings were absolutely void. It was also alleged that'if the plaintiff sold any material to the contractor and delivered the same for the paving, such sale and delivery were made with full knowledge of the facts set up in this count of the answer. For the same reasons stated in the case of Surety Co. v. Brick Co., supra, we think this count of the answer stated a defense good against a demurrer.

The judgment is reversed.  