173 A. 642 | Pa. | 1934
Joseph Ciccone, as principal, and Indemnity Insurance Company of North America, as surety, executed a bond to the Commonwealth for the use of any and every person interested, conditioned that if the principal pay all sums of money which may be due any person, copartnership, association or corporation "for all material furnished and labor supplied or performed in the prosecution of the work [of improving a state highway] whether or not the said material or labor enter into and become component parts of the work or improvement contemplated, then this obligation to be void, otherwise to remain in full force and effect." The band stipulated that "the principal and surety hereby jointly and severally agree with the obligee herein that every person, copartnership, association or corporation, who, whether as subcontractor or otherwise, has furnished material or supplied or performed labor in the prosecution of the work as above provided, and who has not been paid therefor, may sue in assumpsit on this additional bond in the name of the Commonwealth."
The Atlantic Refining Company, use plaintiff, supplied to Ciccone gasoline, rayolight oil and heavy oil at *113 a cost of $10,030.26. The gasoline and heavy oil were used by the contractor in the operation of shovels, trucks, rollers, bulldozers, tractors and graders, and the rayolight oil in furnishing light in danger signals used in the performance of the contract. The use plaintiff brought suit on the bond and judgment was entered in its favor in the court below for want of a sufficient affidavit of defense. From this judgment the indemnity company appeals, alleging that it is not liable under its bond for the cost of the materials furnished.
The bond is dated June 20, 1932, and was given under the requirements of section 13 of the Act of June 26, 1931, P. L. 1388, which provides that every contractor for the construction or improvement of a state highway shall furnish a bond in a sum equal to fifty percentum of the contract price of the work, "which bond shall be conditioned for the prompt payment of all material furnished and labor supplied or performed in the prosecution of the work, whether or not the said material or labor enter into and become component parts of the work or improvement contemplated. . . . . . . Every such additional bond shall provide that every person, copartnership, association, or corporation, who, whether as subcontractor or otherwise, has furnished material or supplied or performed labor in the prosecution of the work as above, and who has not been paid therefor, may sue in assumpsit on such additional bond, in the name of the Commonwealth, for his, their, or its use and prosecute the same to final judgment for such sum or sums as may be justly due him, them or it, and have execution thereon."
The question for determination is whether the use plaintiff, which furnished gasoline, heavy oil and rayolight oil used and consumed by the contractor in the performance of his contract, may recover therefor from the surety on his bond. In Com. v. Union Indemnity Co.,
Now we have an entirely different situation created by the language of the Act of 1931. This act provides that the bond "shall be conditioned for the prompt payment of all material furnished and labor supplied or performed in the prosecution of the work, whether or not the said material or labor enter into and become component parts of the work or improvement contemplated." In view of the present law, which removes the requirement of the earlier cases that the material must have entered into and become a component part of the work, the only question open for determination in the pending case is whether the materials here supplied can be said to have been furnished in the prosecution of the work, and we think it is obvious that they were so furnished. The gasoline and heavy oil were supplied for the operation of trucks, rollers, bulldozers, tractors and graders directly used in the prosecution of the work; the rayolight oil furnished light for danger signals necessarily used in its prosecution. The words "prosecution of the work" are broader in their implication than those used in the prior statutes "construction of the highway." In Phila. v. Jackson Co., Inc.,
In concluding as we do, we are not unmindful of our recent case of City of Lancaster v. George,
The judgment is affirmed.