101 Pa. Super. 314 | Pa. Super. Ct. | 1931
Argued March 11, 1931. This is an appeal by the use plaintiff from a judgment for the defendant on a question of law raised by its affidavit of defense.
William M. Moser had a contract with the Commonwealth of Pennsylvania to furnish and deliver all materials and to perform all work and labor in the *316 improvement of a certain section of state highway by the construction of a concrete road, including two bridges, which were also to be built of concrete. The contractor gave to the Commonwealth a bond, on which the Aetna Casualty and Surety Company, defendant, was surety, conditioned for the performance of the contract and for saving harmless the Commonwealth from any expense incurred through failure of said contractor to complete the work and paying "for all material furnished and labor performed in and about the construction of said highway." The condition of the bond was in the wording of the statute under which it was given and accepted. See Act of May 31, 1911, P.L. 468, Section 13, as amended by the Act of May 16, 1921, P.L. 650. The use plaintiff furnished lumber, nails and roofing paper to one of Moser's sub-contractors who, according to the averments of the plaintiff's statement, used the materials for the erection and construction of "forms into which the cement and concrete was poured, resulting in the formation and erection of the two bridges on said highway...... When completed, the forms were moved and the lumber, etc., did not remain as a component part of the highway."
The court below held that inasmuch as the materials furnished by the use plaintiff did not remain upon the completion of the contract a component part of the completed road, the plaintiff could not recover under the bond. This conclusion is so well supported by the decisions of the Supreme Court and this court that discussion seems unnecessary. See Philadelphia v. Jackson
Co.,
The judgment is affirmed.