Appeal, No. 313 | Pa. | Feb 25, 1907
Opinion by
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.
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" court="Pa." date_filed="1899-07-19" href="https://app.midpage.ai/document/city-of-lancaster-v-frescoln-6245445?utm_source=webapp" opinion_id="6245445">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
The assignments of error are without merit. ' Judgment affirmed.