Philadelphia v. Harry C. Nichols Co., 214 Pa. 265

Philadelphia v. Harry C. Nichols Co.

214 Pa. 265 | Pa. | 1906

Opinion by

Mr. Justice Fell,

This action was on a bond given by the Harry C. Nichols Company, principal, and the Union Surety and Guaranty Company, surety to the city of Philadelphia, conditioned that the Nichols Company should pay all sums due for labor or materials supplied in the erection of a schoolhouse for the building of which the said company had entered into a contract with the city. The Nichols Company contracted with one Harffey for the brickwork for the building and the use plaintiffs furnished the bricks used under his contract.

At the trial before the referee chosen by the parties, three grounds of defense were relied upon: First, that an action on the bond could not be maintained by a party who furnished materials to a subcontractor;. second, that the surety was not liable for materials furnished after the subcontractor abandoned the work; third, that the misjoinder as defendants in the action of persons who are not obligors on the bond prevented a recovery and that an amendment could not be allowed.

The bond was given in pursuance of the ordinance of councils of March 30,1896, entitled “An ordinance for the protection of subcontractors as well as for all persons furnishing labor and materials for the construction of buildings for the city of Phila*273delphia or for any other city contracts,” which provides that any person entering into a contract with the city for the prosecution of any public work shall execute a bond to pay all persons supplying him “ with labor or materials, whether as subcontractor or otherwise, in the prosecution of the work provided for in such contract.” The ordinance authorizes anyone who has furnished “ labor and materials, either as a subcontractor or otherwise,” to bring suit on the bond in the name of the city to his use. The condition of the bond to pay “ any and all persons any and all sums of money which may be due for labor and material supplied or performed in and about the said work ” is more explicit than the requirement of the ordinance, but it is not broader than the purpose and scope of the latter. The bond having been voluntarily given, it may be enforced according to its terms, although it exceeds the requirements of the ordinance. The exact question here raised as to the construction of the ordinance was decided in Bowditch v. Gourley, 24 Pa. Superior Ct. 342, and we concur in the conclusion announced by that court that “ to sanction any other construction would be destructive of the very purpose of the ordinance by taking from the honest labor or material man the particular security which the city councils had provided for his protection.”

Both Harffey and the Nichols Company got into financial difficulties and Harffey’s contract was carried out by one who had become liable to indemnify his surety. After the failure of Harffey the use plaintiffs continued to furnish bricks consigned and charged to him, but with notice that his bondsman had taken up the contract. New contracts were not made but the original contracts were carried to completion by parties having an interest to do so. There was no change in the relation of the contracting parties. The work was done under the contracts either by or for the parties who had agreed to do it, and the Union Surety and Guaranty Company was not relieved from liability on its bonds.

The action was brought against the obligors named in the bond and against Harffey. Diamond was by amendment made a codefendant, and judgment was entered against him for want of an affidavit of defense. This judgment on his motion was opened and the record was amended by striking therefrom his name and that of Harffey after the expiration of the period *274specified in the bond as the limit of time in which suit could be brought. The writ was issued against the Nichols Company Harffey and the Union Surety and Guaranty Company as individuals, and Diamond was brought in as an individual defendant. The four defendants were not named in the statement as partners but it was averred in the statement that “ Harffey and Henry C. Nichols Co. formed a partnership with one Andrew Diamond for the purpose of erecting and constructing the said building.” This averment was erroneous and would have been useless if correct. But it did not charge the Union Surety and Guaranty Company as a partner, nor charge it as surety for a partnership. The amendment was therefore properly allowed. The cahse of action was the obligation of the bond. The striking out of the names of those defendants who had assumed no liability did not change the cause of action against the obligors, nor alter nor increase their liability, nor charge them in any other capacity than that in which they had been sued.

The judgment is affirmed.