21 Pa. Super. 461 | Pa. Super. Ct. | 1902
Opinion by
The questions presented by this record are practically the same which have been considered in the case of City of Williamsport v. Hughes, ante, p. 443, and we do not regard it as necessary to supplement what we there said. There was a jury trial in the present case, and the court below entered a judgment of nonsuit, which it subsequently refused to take off; and from that order we have this appeal. The ordinance which authorized the improvement out of which this lien arose required an absolute covenant of guaranty, upon the part of the contractor, for the period of ten years. The contract contained a covenant upon the part of the contractor to keep the pavement in good repair for the period of ten years without any further consideration than that mentioned in the bid or proposal. The guaranty of durability and the covenant for repairs contained no qualification whatever, and the contractor might be required to make repairs without regard to the cause which made the same necessary. The defendant may have little difficulty in convincing a jury that the nominal contract price of this pavement embraced compensation for more than a skilfully executed construction of the original improvement, and that the lien filed by the city is excessive; but we are of opinion that to a jury he must go.
The judgment is reversed and a venire facias de novo awarded.
