38 Pa. Super. 286 | Pa. Super. Ct. | 1909
Opinion by
The defendant company was surety for Wallace & Company, contractors for the construction for the plaintiff of “an extension of the main intercepting sewer from its then terminus at Nixon’s Mill northeast of Fountain Street on piivate property to Shawmont Avenue, thence north upon Shawmont Avenue to Eva Street.” The contract was evidenced by two separate agreements with the city of Philadelphia, one dated November 17, 1902, and the other December 9, 1903. It is admitted that the defendants were surety for the contractor only under the supplemental contract last above mentioned, the bond of suretyship being of the same date.
The use plaintiff bases his claim for work and labor and materials furnished by him to the contractors under the supplemental contract aforementioned, as contained in a copy of his book of original entries filed with his statement. It was admitted at the trial that the work and labor done and materials furnished prior to March 3, 1904, being under the first contract, should be deducted from the account, the defendant not being liable therefor. It was also admitted that the items for bituminous coal furnished were not properly chargeable against the defendant.
Several questions are raised by the assignments of error which may be best considered and disposed of by taking them in their order.
The first two relate to the admission of the plaintiff’s book entries, as contained in the following offer: “Mr. Cantrell: I next offer in evidence the copy of the book entries attached to the statement of claim beginning on March 3, 1904, with the ex-, ception of any cartage which is there noted, the cartage being questioned in the affidavit of defense. Objected to, unless the book account is proved. Objection overruled and book account admitted in evidence. Exception allowed for defendant.”
As we understand the argument of the appellant, the rules of the court in which the case was tried provide that: “In actions on book accounts a copy,of which, supported by an affidavit of the truth thereof, shall have been filed, it shall not be necessary to produce the books at the trial, unless the defendant in the
The second assignment, however, denies that the book as produced was one of original entries, for the purpose of proving the cartage. The entries in the book produced were made from cartage slips or delivery tickets. The entries, as we understand it, were made directly from these slips at or about the time they were signed. The court ruled that the book was one of original entries and admitted it as such under exception. We think this action is justified by Hoover v. Gehr, 62 Pa. 136, in which it was held, Mr. Justice Sharswood delivering the opinion, in which many authorities are cited, that: “It is not a valid objection to a book as one of original entries that it is kept in ledger form.” This was a case in which the accounts were transcribed from pass books into the larger book and in which the admission of the book by the court below was held to be proper.
The third, fourth, fifth and sixth assignments relate to the subject of the charge for cartage, the court below holding that the furnishing of a horse and cart was “labor furnished to the job,” and submitting to the jury the amount or number of days when the horse and cart were employed about the job. This is excepted to by the appellant, upon the authority of Philadelphia v. Malone, 214 Pa. 90, in which it was held that: “A subcontractor is not entitled to recover against the surety on a municipal contractor’s bond for coal furnished for generating steam to run a steam shovel and a locomotive used in excavating and removing dirt in constructing a reservoir, where it ap
It appeared in the trial that the plaintiff credited the price of a horse and some brick sold to him by the contractors, upon an account between them which existed prior to the defendant’s liability on its bond. The court allowed this credit and instructed the jury that the credit had been properly entered, although at the time of its entry the defendant was liable on its bond for the acts of the contractors within the terms of their contract. This we think was clearly right, under all the authorities. In Woods v. Sherman, 71 Pa. 100, as stated in the syllabus: “Davis was indebted to Sherman for printing; he refused to do more without a guaranty. Woods agreed to guaranty to Sherman the contract made by him with Davis to the amount of $10,000. Afterwards, Davis paid money to Sherman, without directing any appropriation. Held, that Sherman might apply it to the debt due before the guaranty.” So in Pardee v. Markle, 111 Pa. 548: “Where there are items of
The last assignment of error relates to a clause in the charge of the court below, in which it is claimed that the trial judge overstated the amount of the basis of the plaintiff’s claim as follows: “Therefore, if I understand it correctly, that amount of $64.15 is to be deducted from the $109.62 or from the $119.47, that is immaterial, but taking it from the $109.62, leaving $45.47, which added to the $119.47, would leave the defendant’s claim, as I make it, $164.94. I may be wrong as to the figures in hastily running over them. Assuming that I am correct, you will take the law from me. I mean in regard to assuming that is correct, you have the basis of the plaintiff’s claim, a sum of $349, as per his book account filed. Or, rather, that is the basis of the plaintiff’s claim here for you.” As a matter of fact, the basis of the plaintiff’s claim, as set forth in the copy of his book account attached to the statement, was $379.09, which was reduced by the charges for which it was conceded the defendant was not liable for the items of bituminous coal which were excluded by agreement and it would, therefore, have been perfectly correct for the court to have named the basis of the plaintiff’s claim as the amount contained in the copy of his book of original entries. He placed the basis of the claim, however, at $349, being less than the aggregate claim as contained in the plaintiff’s statement. The error, therefore, if there was any, was in favor of the defendant, but the court specially guarded his statement by the cautionary instructions to the jury that he might be wrong as to the figures
An examination of all the assignments of error, as tried by the testimony and the charge of the court, and a full consideration of the appellant’s argument, fail to convince us that the court below erred in any way in the trial, so far as indicated in the assignments of error. None of them is, therefore, sustained.
Judgment affirmed.