164 A. 78 | Pa. Super. Ct. | 1932
Argued November 16, 1932.
This is an action of assumpsit to recover upon a statutory bond for labor and material furnished in the construction of a state highway Act of 1929, P.L. 1590 (36 P.S. 142). The plaintiff filed his statement of claim and the defendant answered with an affidavit of defense in the nature of a demurrer. The court below sustained the demurrer as to part of plaintiff's claim and as to such part entered judgment for defendant. Plaintiff was a sub-contractor with the DePaul Construction Company to whom the Secretary of the Highways awarded the general contract for the improvement. The present defendant is the Consolidated Indemnity and Insurance Company, who executed the bond required by law for the protection of all labor and material furnished. The objection successfully urged in the lower court by the defendant to the statement is that it alleges that plaintiff furnished certain extra work; that the contract between the general contractor and the plaintiff provided "that no claim for extra work or materials will be allowed unless such work is ordered in writing and the party of the first part shall incur no liability by reason of any verbal directions or instructions that may be given Newton by the chief engineer or his authorized assistants. Nor will the party of the first part be liable for any materials furnished or accepted or for any work *538
or labor done unless orders for said material or labor is given in writing," that there is no information given in the statement that the order for said extra work was oral or written, and if oral, that there was a waiver of the above provision of the contract, and that the statement was fatally defective by reason of the omission to set out these matters. The extras claimed are set forth in separate paragraphs in plaintiff's statement, they comprise rental of machinery, unloading of materials and extra work made necessary by the change in the specifications ordered by the department of highways. (See Cramp Co. v. Central Realty Corp.
The defendant seeks to sustain the action of the lower court by a reference to the case of Levine v. Pittsburgh State Bank,
The judgment is reversed with a procedendo.