Appeal, No. 385 | Pa. | Feb 5, 1900
Opinion by
The Pennsylvania Institution for the Instruction of the Blind, this defendant, on June 80, 1897, entered into a contract with Warner H. Jenkins & Company, by which Jenkins & Company undertook to construct for defendant at Overbrook, a building designed as a home and school for the blind; the contract was duly recorded, as provided by Act of June 26, 1895, P. L. 369. It is quite elaborate as to details, and minute as to specifications. Clause C is as follows: “ There shall be no lien or right to claim a lien against the building or its site for work or labor done or
As a consideration for the work, defendant agreed to pay the contractors the sum of $286,300; the payments to be made monthly on certificate of the architect as to amount due, but amount to be paid not to exceed eighty per cent of certificate; the final instalment not to be payable until all mechanics and material men “ shall have in writing acknowledged, that they have been fully paid by the contractors for their work and materials done and furnished.”
The building was completed and accepted by defendant, and there remained in its hands the final instalment amounting to $57,260. The contractors, about that time, became insolvent, and made an assignment for the benefit of creditors; a judgment creditor issued an attachment execution and sought to levy his debt out of this fund in defendant’s hands: the defendant, insisting on the strict terms of the contract, refused to pay either the assignee, subcontractors or attaching creditor; that is, it demanded the written acknowledgment of the mechanics and material men, that they had been fully paid by the contractors.
A number of the subcontractors had not been paid by the contractors ; they, as a class, filed this bill against defendant, the contractors and their assignees, setting out the foregoing facts: and further, that the provision in the contract for withholding of the final payment was inserted for the purpose of inducing them to do work and furnish materials, notwithstanding the waiver of the right to file lien by the principal contractor; and further, that they furnished their materials on the faith of this provision, and on the express assurance of the architect that it was for their benefit. The prayers were, that a receiver be appointed for this particular fund, and that it be distributed pro rata, among the subcontractor creditors of the principal contractors on their executing proper written releases.
Defendant demurred to the bill: 1. Because the subcontractors were not parties to the contract. 2. The contract conferred
It is argued, the demurrer admits the averments of the bill; 'it does not admit argumentative conclusions, or doubtful inferences from undisputed facts. The averments, that the provision as to the retention of the final payment, was for the benefit of the subcontractors, and that the architect of defendant was its agent to explain the intention of this provision, are but the arguments of the pleader; the demurrer admits the contract ■as set out; that the principal contractors have performed their work; that defendant has in hand the §57,260; that it ought to be paid to the principal contractors on their compliance with the condition which the contract stipulates shall precede its payment ; that the architect has just such power as is given by the contract and none other.
If the contract had provided that on the failure of the principal contractors to deliver the written acknowledgments specified, the money should be withheld from them for the benefit ■of all the subcontractors who had not been paid, it might have been forcibly argued that such provision constituted an equitable assignment of the fund for their benefit. But that is not the contract; it provides, that the money shall not be paid to the principal contractors until the written acknowledgments •are obtained; obviously, this is for additional protection to the owner. True, it has secured an express waiver of the right to file liens ; but it may choose to take no chance of harassing litigation by wronged, subcontractors and material men, and may insert as many provisions, not for the benefit of subcontractors, but for its own protection, as it chooses.
Nor does the averment, that the architect, by representations ■outside the contract, allured these plaintiffs into giving credit' on the faith of this provision, rest on any stronger foundation. Tho architect was the agent of defendant in many things ; all however, expressly set out in the contract. In this there is not the semblance of authority in him to go outside the scope of his professional duty, and as a lawyer interpret the legal effect of
The bill was clearly demurrable. But, it is asked, can defendant honestly retain this money and pay to nobody ? We answer,, no. Whenever the written acknowledgments are obtained,, either by the principal contractors or their assignee ; or when, under the limitations of the mechanic’s lien law,' defendant is beyond peril as to liens against its buildings and grounds, it owes a debt, in such amount as is yet unpaid of the contract, price, personally to the principal contractors, which it is bound, to pay to the assignee to whom the assets have passed. Whether these plaintiffs have any equity superior to that of the general, creditors in this particular asset, we do not even intimate an opinion; if they have, it can be worked out in the court below on distribution of the fund.
The decree sustaining the demurrer and dismissing the bill, is affirmed. .. • ■