196 Pa. 128 | Pa. | 1900
Opinion by
The question presented on this appeal is whether the court below erred in refusing to open the judgment entered on the bond. The obligors in the bond are Frank P. Kemon and George Rowe and the obligee in it is Ethelinda Blauvelt. The bond was given by the obligors to the obligee to indemnify her against loss arising from any failure of Kemon to comply with his .covenants and agreements in a contract between Ethelinda Blauvelt party of the first part and Frank P. Kemon party of the second part, relating to the erection and construction of nine houses upon a lot or piece of ground situate in the twenty-second ward of the city of Philadelphia. By the terms of their
The contract and bond accompanying it were executed the same day, and while the obligors in the latter appeared as principals the relation of Rowe to Kemon was that of a surety for the performance by his principal of the work he had contracted to do under his contract with the party of the first part. The application to open the judgment was made by and in the interest of the obligors who claimed that Ethelinda Blauvelt had failed to comply with the terms of her contract with Kemon, and thereby released them from liability on the bond. The principal matters alleged as cause for opening the judgment were changes made in the contract between the plaintiff and the contractor without notice to or consent of the surety, over-payments by the plaintiff to the contractor to the detriment of the surety, and that the plaintiff paid too much for the work done in finishing the contract. The answer to the first allegation is found in the general conditions contained in the specifications. These conditions are not printed in the aj^pellant’s paper-book but the condition which constitutes the answer to the charge of changes in the contract without notice to the surety, is printed in the appellee’s paper-book and is as follows : “ The builders reserve the right to make alterations in the drawings and specifications, and by so doing it must be understood by the contracting parties that the value of said alterations are to be made by the said architect who will make an equitable allowance, and should his valuation not be satisfactory then the alterations shall be valued by three, competent parties, one selected by the builders and the other by the contractors, and these two shall have the power to name a third party; the decision rendered must be binding on all parties thereto.” The admission in the bond that the obligors had ex
We have carefully examined and considered the testimony -submitted by the defendants in support of .the claim that, the court should open the judgment, and the testimony submitted by the plaintiff in answer thereto. Our conclusion from the examination is that the weight of the testimony is against the claim of the defendants. On an application to open a judgment it is proper for the court to weigh the evidence and decide according to the preponderance thereof, and the court will not reverse for the exercise of a sound discretion: Wernet’s Appeal, 91 Pa. 319. An (application to open a judgment entered on warrant of attorney or on a judgment note is addressed to the equitable 'powers of the court -below, and upon an appeal to the Supreme Court, under the Act of April 4, 1877, P. L. 53, the question is whether the court below rightly exercised its discretion on the evidence. It is a mistake to suppose that the court
Judgment affirmed.