271 Pa. 312 | Pa. | 1921
Opinion by
This is an appeal from a judgment for want of a sufficient affidavit of defense, in a suit upon a bond conditioned for the faithful performance of a contract for constructing one of the State’s highways, and, also, for the payment of “all and every sum or sums of money due [those furnishing] labor and materials for which the contractor is liable.” The affidavit of defense admits the latter did not complete his contract, and that the Commonwealth’s loss exceeds the amount of the bond; but, . in avoidance of the right to recover, makes certain statements, which, it is claimed, would justify a jury in find
So far as regards the latter of the foregoing objections, appellant’s only concern is to be protected against liability to pay more than the amount of the bond; and, as to this, it may secure itself by a petition in the court below, after notice to all known claimants upon the fund (and with an averment that there may be others, if it is believed there are), for leave to pay the amount due into court, for distribution among those entitled thereto.
In considering the alleged impossibility of performance, it is not necessary to differentiate the interesting cases found in the opinion of the court below, and in the paper-books of the respective parties, for it is conceded that difficulty of performance is not a valid excuse, and we are of opinion the affidavits of defense, fairly interpreted, asserts nothing beyond this, whether impossibility of performance is construed to mean absolute impossibility, or “commercial impracticability,” as averred in some of the cases cited.
After eliminating all statements in the affidavit of defense, which relate to the opinion of the surety and its advisers, that a defense exists, because a contingency arose which was not contemplated by the parties at the time the contract was made, and that the contractor was entitled to an extension of time and an advance of price, because of this contingency (the contract being silent on the point and there being no allegation of its omission by fraud, accident or mistake, or any other averment made
It will be noticed there is no averment as to tbe kind of materials tbe contractor needed, wbicb required transportation, nor at what point or points they must be obtained; nor, while it is averred “tbe United States assumed tbe control of transportation, labor and materials,” is it anywhere stated that it took over any of tbe class of materials needed by the contractor, or refused to convey, by tbe lines of “transportation” taken over by it, sucb thereof as would require transportation in that way, if any there were, or that said materials could not have been conveyed by other means, as for instance, by boat or autotruck, available to tbe contractor and commonly employed for this purpose. If there were “United States embargoes and various other federal measures, wbicb are matters of history,” which did more than render difficult tbe obtaining of labor and materials of tbe kind needed in road construction, “tbe court has [no] knowledge” thereof, and they should have been definitely stated. It is true, as tbe affidavit avers, road work was not one of tbe “industries considered as ‘essential’ by tbe War Department,” but many industries, not essential, were carried on during tbe period under consideration, and much road work was done at that time. Tbe court knows that men were drafted into tbe military service, and, perhaps, could take judicial notice of tbe fact that many others entered into employment deemed “essential.” — probably more for patriotic reasons than from any other cause, — but this judicial notice, if it extends as far as tbe affidavit suggests, embraces also tbe other matters above stated, and renders it uncertain and evasive.
The judgment of the court below is affirmed.