Philadelphia v. Pierson

217 Pa. 193 | Pa. | 1907

Opinion by

Mr. Justice Stewart,

George W. Pierson, one of the defendants in the action below, contracted to erect a school building for the city of Philadelphia. The use plaintiff, the Penn Metal Ceiling & Roofing-Company, contracted with Pierson to furnish the steel ceiling-required by the specifications, for the sum of $1,495. Pierson having faffed to complete the building, the work was taken over and completed by the Lincoln Savings & Trust Company, the appellant here, Pierson’s surety. The use plaintiff not having been paid for the ceiling, which it had furnished and put in place before Pierson’s default with the work, brought this action upon the joint and several bond of Pierson and the Trust Company, which had been given the city to secure those furnishing labor and materials about the construction of the building. Judgment was taken against Pierson by default, for want of an affidavit of defense, for the sum of $1,499.23, and the case was proceeded with against the other defendant. On the trial the written agreement between contractor and subcontractor, showing the consideration agreed upon for the ceiling, was offered in evidence, as also the judgment obtained against Pierson in the action; but no independent evidence was adduced as to the market value of the work and materials employed in connection with the subcontract.

1. It is argued that recovery could be had only for the market value of such labor and materials, and as neither contract nor judgment established this, since presumably the subcontractor’s profits were included in the contract price, the plaintiff’s claim was wholly unsupported by the evidence. The answer to this is, that it is not so written in the bond. The obligation of the Trust Company was not to pay for labor and materials furnished according to their market value any more than it was Pierson’s. The latter’s obligation was to pay “ any and all persons, any and all sum or sums of money which may be due for labor and materials furnished,” etc. Pierson could not have been heard to say in defense of the action that the contract price exceeded the market value of the labor and materials employed, for what was due to the plaintiff, and therefore recoverable, was such sum as he had agreed to pay for the ceiling. No more could the Trust Company, for the obligation was the same with respect to each. There is no pretense of unfairness in the contract, or that the ceiling came short of the requirements of the specifications. Had mistake, or collusion between Pierson and the use plaintiff to defraud the Trust Company, been alleged, the cost and value of the ceiling might properly have been inquired into, and the recovery against the defendant restricted so as to accord therewith. But there was nothing of the kind; what was due from Pierson was the contract price, and it was what was thus due that the Trust Company agreed to pay, if Pierson did not.

2. The contention that the action was premature, inasmuch as the contract provided that plaintiff was to be paid only in proportion as Pierson received his payments from the city, and that five per cent was to be retained for a year after final payment by the city, overlooks the significance of the judgment against Pierson. That judgment determined finally that there was then due and owing from Pierson to the plaintiff the sum of $1,499.23. "What it determined cannot be made the subject of further litigation; the result there reached extends to every question in the proceeding which was legally cognizable: Lancaster v. Frescoln, 192 Pa. 452. When it is remembered that defendant’s undertaking was to pay what was due from Pierson to the plaintiff on the former’s default, it becomes apparent that the question so elaborately argued, as to when a right of action accrued under the contract, has no place in the present inquiry.

3. It was set out in the affidavit of defense that “ deponent is informed that at the time the writ was issued in the above entitled case, the city solicitor had not in fact approved the bond of indemnity tendered to the city by the use plaintiff, and defendant therefore denies the allegations to that effect contained in the statement of claim.” Such a qualified and indefinite statement in an affidavit of defense would bo without any legitimate effect; but even were it otherwise, it could have no effect in determining the issue to be tried. The only purpose of an affidavit of defense is to avert summary judgment; the issue is determined by the pleadings in the case, and these alone. Here there was a general plea, with notice of special matter. This did not put in issue the fact distinctly alleged in the statement of claim filed, that the required bond had been approved by the city solicitor. Under this general plea nothing was put in issue but the plaintiff’s right and title to the thing claimed; that is to say, the right to compensation for the steel ceiling which, at its own proper cost and expense, it had furnished and pat in place for the city. The right to recovery in a particular action is one thing; the right to the thing itself, the subject of the action, is quite another. Under a general plea the latter right may be contested; if the former be denied, such issue is to be raised by plea in abatement, or notice under the special matter filed. As the case stood on the pleadings, the plaintiff was not called upon to prove affirmatively what appeared in his statement as matter of inducement. It was said in Horan v. Weiler & Ellis, 41 Pa. 470, in reference to; a like question'arising on the pleading: “If the defense could avail under any circumstances, it would be in avoidance, and would present an affirmative step to be taken by the defendant. He would be bound both to plead and prove the matter he relied on.” Here the defendant elected to go to trial on an issue of its own choosing, and it is now too late to introduce another.

The assignments of error are without merit. ' Judgment affirmed.