57 Pa. Super. 221 | Pa. Super. Ct. | 1914
Opinion by
The plaintiff founds this action of assumpsit on a bond sealed and delivered by the defendant corporation, and claims the right' to recover the entire penal sum therein named. To this statement of claim the defendant filed a demurrer assigning a number of reasons in support thereof. The learned court below overruled the demurrer and entered a judgment for the plaintiff for the entire sum named in the bond. From that judgment this appeal was- taken.
If it appear from an examination of the bond that it is in essence and substance an obligation for the payment of a definite sum of money upon conditions which the statement filed avers to be now existent, the action of the court below ought not to be disturbed. If, on the other hand, the obligation of the bond was really and truly but to indemnify and save harmless the plaintiff against loss or damage resulting from certain policies of insurance issued by it on the strength of the bond, then under well-established principles that obligation does not become active until the loss against which it indemnified has been averred or established. Now the bond, after the usual penal clause, recites that at the instance and request of the obligor the obligee had agreed to issue its policies of insurance “to various parties as owners, mortgagees, ground-rent owners or
Now the statement goes on to aver that in reliance upon the contract and bond referred to, the said plaintiff "did issue its bonds or policies of insurance to vari
In Wheeler v. Equitable Trust Co., 206 Pa. 428, the court had to deal with a bond somewhat more favorable to the contention of the plaintiff here than the one on which it sues. Mr. Justice Dean, speaking for the court, said: “But the contract is not intended by its terms to be severed into two, one to indemnify against loss from defects of title and one to guarantee, that the buildings shall be finished in accordance with certain plans and specifications. If the contract were one of guarantee, then the plaintiff, although she may have lost nothing on her collateral, instead may really have largely profited by the sale of it, would have a right to recover; on the other hand, if the contract were one of indemnity alone, she could not recover unless she proved a loss on the mortgage. This is the substance of the decisions in Wheeler v. Real Estate Title Ins. & Trust Co., 160 Pa. 408, and Seymour v. Tradesmen’s Trust, etc., Co., 203 Pa. 151. We hold that this policy, taking it as a whole, is a contract of indemnity and recovery can be had on it only as such,”
In the case at bar the plaintiff exhibits no policy of insurance issued by it from which the nature or extent of its liability thereunder may be determined. It does not aver that in or by any one of said policies it covenanted or agreed to do any work on any of the said buildings that may have been left undone by the general or any subcontractor. It does not aver that the buildings, as they stood, with the uncompleted work of the present subcontractor, would not have sufficiently pro
We are of the opinion that something more must be shown by the plaintiff before it can successfully defend the judgment that has been entered. We are not unmindful of the fact that the obligor in the bond sued on is the subcontractor who, it is alleged, made default in the performance of his contract; nor of the further fact that the contract, a copy of which is attached to the statement, discloses that the general contractor, the other party thereto, was given the right to do the work, if the subcontractor failed, and charge the cost of it to the defaulting subcontractor; nor of the recital in the bond that the contract of the obligor with the general contractor “shall inure to the benefit of the obligee herein.” What remedies the plaintiff may have, if it is in a position to sue on the contract, what the measure of its recovery in such an action might be, what defense, if any, could be made by the subcon
The judgment is reversed and set aside and the record is remitted to the court below with direction to enter the order; demurrer sustained, and a procedendo is awarded. The costs of this appeal to be paid by the appellee.