159 A. 7 | Pa. | 1931
Argued December 3, 1931. This action in assumpsit is to recover on a bond given by defendants to the City of Philadelphia to protect laborers and materialmen under a contract with defendant city. The pertinent facts follow: On June 22, 1925, the Stange Construction Company entered into a written contract with the City of Philadelphia to grade Pattison Avenue from Tenth Street to Eleventh Street, Tenth Street from Bigler Street to Pattison Avenue and *181 Eleventh Street from Pattison Avenue to Terminal Avenue. On the same day, the Stange Construction Company, as principal contractor, together with the Southern Surety Company, as surety, delivered their joint bond to the municipality in the amount of $38,400 to secure payment of labor and material claims in accordance with the provisions of an ordinance of council entitled: "An ordinance for the protection of persons, other than those contracting directly with the city, who perform labor and furnish materials for the erection, construction, addition, removal, alteration, or repair of buildings, structures or other work and improvements for public use, including the work of setting up and equipping the same for the City of Philadelphia." Section 2 of the ordinance provides, among other things, that "Any person so performing labor or furnishing and supplying materials in the prosecution of the work covered by said contract and not receiving payment therefor, shall have a right of action and shall be authorized to bring suit in the name of the City of Philadelphia on said bond, for his use and benefit, against said contractor and against the surety on said bond." The work to be done under this contract was in connection with grading land, a part of the preparation for the Sesquicentennial Exposition. The Stange Construction Company engaged the Hastings Dump Truck Company as subcontractors to grade a portion of the area covered by the above contract, and the subcontractor in turn orally engaged Dourte Irelan, Inc., to haul fill to the area which they had agreed to grade for the Stange Construction Company. Dourte Irelan, Inc., was paid for the work done by it to the end of August, 1925, but not for work done between September 1st and September 26, 1925. It is for the recovery of this item, amounting to $13,764.35, with interest from September 26, 1925, that the present action was instituted. On September 26, 1925, the Hastings Company abandoned the job and thereafter Dourte Irelan, Inc., continued *182 to work for the Stange Construction Company direct. Dourte Irelan, Inc., assigned its claim against defendants on the bond filed with the city to the White Company, which assignee appears in this suit as the second or ultimate use-plaintiff. The pleadings consisted of a statement of claim and separate but identical affidavits of defense filed by the Stange Construction Company and the Southern Surety Company defendants. Witnesses were called for both sides and there appears considerable conflict in the testimony. The jury returned a verdict for plaintiffs for $18,283.55, which represented the claim with interest. The defendants filed motions for a new trial and judgment n. o. v., both of which were refused. Final judgment being entered on the verdict, defendants appealed.
Appellants present four contentions in resisting the judgment appealed from, each of which we shall mention in the discussion which follows.
As above stated, Dourte Irelan furnished trucks and hauled earth to the scene of the grading. Appellants' contention that "merely furnishing trucks to haul dirt to the area covered by the bond [was] not such a claim for labor or materials as was intended to be secured by the bond in suit," is untenable under the facts here presented. The scope of the bond is to be determined, in this character of case, in the light of the purpose or contemplation of the principal contract let: Phila. v. Jackson Co., Inc.,
The contention that the White Company, the assignee of Dourte Irelan, is without right to maintain the present proceeding is ill conceived as they are not the legal plaintiffs. Under the above quoted part of section 2 of the ordinance, which was incorporated in the bond delivered by defendants to the city, any laborer or materialman who was not paid was given the right to sue defendants on the bond in the name of the city. When Dourte Irelan were not paid for the hauling done by them between September 1st and 26th, their right of action on the bond accrued. They became entitled to sue as use-plaintiffs, in the name of the city, the legal plaintiff. The city is to be regarded as trustee for those who might become beneficially interested, and is the nominal plaintiff only: Phila., to use, v. McLinden,
Appellants complain of several matters in the court's charge, the most important being that, in reviewing the evidence as to the disputed scale of prices to be paid to the Dourte firm per load for hauling, the trial judge referred to plaintiffs' scale without mentioning that contended for by defendants. The court carefully explained that the figures he repeated were plaintiffs' and were disputed by defendants. Taking the charge as a whole, the court's statement in this regard could not have misled the jury, as it clearly appeared he was, at the time, merely reciting plaintiffs' claims. However, defendants had ample opportunity to have the matter settled to their satisfaction, as the trial judge expressly requested counsel to advise him whether anything had been left unsaid that should have been said and defendants not only failed to mention this matter but took only a general exception. In an analogous situation, where a similar complaint was for the first time raised on appeal, we said "defendant is in no position to take advantage of what was not said by the trial judge (McCaffrey v. Schwartz,
Although it is true that considerable conflict existed in the testimony, we are not convinced that the verdict was speculative. A reading of the entire record shows there was sufficient evidence before the jury on which to sustain their verdict. They had before them the plaintiffs' witnesses and books of original entry, and the evidence produced from these two sources disclosed the dates upon which the respective loads were hauled, the number of them, their points of origin, the unit prices per load and the total charges per day.
The judgment is affirmed; costs to be paid by appellants. *186