The opinion of the court was delivered by
Brewer, J.:It appears from the petition filed in this case, that one J. P. Taggart contracted in writing with defendant in error to erect and complete certain buildings within a stipulated time; that said Taggart and plaintiffs in error entered into a written undertaking with defendant in error, obligating that said Taggart should fully perform all the terms and conditions of said contract. The condition of such undertaking was as follows:
“The condition of this undertaking is such, that whereas, *129said J. P. Taggart has entered into a written contract with said Mark W. Delahay, dated the 12th of May, 1873, but actually executed on the day of the date of this undertaking, for the erection of three dwelling-houses in the said city of Leavenworth: Now, therefore, if the said J. P. Taggart shall fully perform all the terms and conditions of said con-, tract, to be by him performed, and according to the plans and specifications attached to said contract, then this undertaking shall become null and void, otherwise the same shall be and remain in full force and effect,” etc.
The petition sets out both the contract and the undertaking, alleging that Taggart failed to comply with his contract, and asks a judgment against all the signers of the undertaking for the damages sustained by this failure. To this petition Houston and Larimer • separately demurred, first, upon the ground that there is an improper joinder of causes of action, one being a cause of action to recover damages for breach of contract, and another being upon a written undertaking to answer for the default of Taggart; second, that the petition does not state facts sufficient to constitute a cause of action against Houston and Larimer. The demurrers were overruled, and this ruling presents the only question in the ease.
The proposition of counsel is that the “ obligation of Taggart is primary and absolute, and that of the other defendants secondary and conditional;” that they are created by separate instruments, that of Taggart by the contract, and that of the others by the undertaking, and that these separate causes of action do-not affect all the parties. We are disposed to think this is not the correct view to be taken of this case. The pleader, it is true, in setting out the contract and the breach of it, sets out a cause of action against Taggart, and against Taggart alone- — a cause of action not limited in amount by the penalty of the undertaking, but extending to the full damages resulting from such breach. But this statement, it seems to us, is preliminary, and for the purpose of showing a default in the condition of the undertaking. All signed the undertaking, and all therefore assumed the *130obligations created by ih The condition of the undertaking is the performance by Taggart of his contract. Without default in this, no one is liable on the undertaking. With it, all are. This default was alleged in the petition, and it matters not that in alleging it a cause of action is shown against Taggart for breach of his separate contract. Indeed, it could not be otherwise, for if Taggart defaulted in his contract, he was liable to an action for damages caused thereby. If he did not default, there was no liability on the undertaking. No liability could be shown on the undertaking without showing the default of Taggart, and the default of Taggart could not be shown without showing a cause of action against him. All that is claimed in the prayer of the petition is, the amount of the undertaking, while the damages alleged to have been sustained by the different breaches of the contract greatly exceed that amount. It is true that the pleader, in commencing the several statements of the different breaches, and of the execution of the undertaking, says, “and for a further cause of action,” etc.; but we must have regard more to the substance of the petition than to the mere form of statement. Suppose the demurrer had been sustained: under § 92 of the code, the court would have been compelled to permit the plaintiff to have filed a petition with one count, and showing a cause of action on the undertaking. To accomplish this, the only change necessary would have been to omit these preliminary words which introduce, as it were, the several statements of the breaches, and of the execution of the undertaking. That this was not done, cannot have wrought any injury to the substantial rights of the plaintiffs in error; so that, though the court might have, strictly speaking, erred in its construction of the pleading, the judgment would have to be affirmed.
The judgment will be affirmed.
All the Justices concurring.