Benedict v. Hood

• Decision Date: 21 April 1890
• Docket Number: 193 1/2
• Citation: 19 A. 635,134 Pa. 289
• Parties: E. H. BENEDICT v. J. E. HOOD
• Court: Pennsylvania Supreme Court

19 A. 635

134 Pa. 289

E. H. BENEDICT v. J. E. HOOD

No. 193 1/2

Supreme Court of Pennsylvania

April 21, 1890

Argued April 4, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 193 1/2 January Term 1889, Sup. Ct.; court below, No. 4 December Term 1887, M.L.D., C.P.No. 2.

To the number and term of the court below, Edgar H. Benedict issued a scire facias, sur a mechanics' lien for plastering against James E. Wood, owner, and Joseph C. Pharaoh contractor. Issue.

At the trial, the plaintiff read in evidence the claim filed showing the amount due thereon to be $352.55, and rested. The defendants then showed that the building, a stone house on a corner of Gowen avenue and Ardleigh street, at Mount Airy had been erected under a contract between Joseph C. Pharaoh, of the first part and James E. Hood, defendant, of the second part, dated November 9, 1886, wherein the said Pharaoh covenanted:

". . . to well and sufficiently furnished and provide, at his own cost and without delay, all necessary work and materials for, and to erect, construct, and fully complete, for the said party of the second part, a stone house . . . according and in all respects conforming with the plans and specifications," etc.

"And it is further agreed that the party of the first part will not at any time suffer or permit any lien, attachment, or other encumbrance, under any law of this state or otherwise, by any person or persons whatsoever, to be put or remain upon the building or premises into or upon which any work is done or materials are furnished under this contract, for such work and materials, or by reason of any other claim or demand against the party of the first part; and that any such lien, attachment, or other encumbrance, until it is removed, shall preclude any and all claim and demand for any payment whatsoever under or by virtue of this contract. . . .

"And further, the last instalment shall not be payable, unless, in addition to the architect's certificate, a full release of all claims and liens against the said building and its appurtenances and the said lot of ground, for all work done and all materials furnished in or about the construction and erection of said building, has been delivered by the party of the first part, and unless the architect shall certify that all damages or allowances which should be paid or made by the party of the first part have been deducted from the said instalment, and also a certificate from the party of the first part that all claims or demands for extra work or otherwise under or in connection with this contract have been presented to the architect. . . .

"The payment shall be made by the party of the second part in instalments, when and in the amounts approved by the architect: Provided, That no instalment shall be less than three hundred dollars, and that a margin of twenty per cent shall always remain for the final instalment; that is, there shall at all times be at least twenty per cent of the work done which is unpaid for. And the sub-contractors, mechanics, and material-men, except those who have executed the bond of Joseph C. Pharaoh, as sureties for this contract, shall first give a release of lien for all work done and material supplied by them up to date of such payment."

Appended to the foregoing contract was the following guaranty:

"We, Edgar H. Benedict, Plasterer, 1933 Girard Avenue; Henry J. Keeler, Painter, 1749 Beechwood Street; T. H. Truitt, Plumbing and Gas-Fitting, 1809 Ridge Avenue, for and in consideration of the foregoing covenants and agreements made on the day of November, 1886, by the said James E. Hood, with our sanction, and at our request, and in the further consideration of one dollar unto us paid by the same James E. Hood at the time and execution hereof, the receipt of which we hereby acknowledge, do jointly and severally for ourselves, and for our and each of our heirs, executors, administrators, and assigns, guarantee and become responsible to the said James E. Hood, without proceedings or suit first brought against the said Joseph C. Pharaoh, for the faithful performance of all covenants and agreements therein contained, to be kept and performed by the said Joseph C. Pharaoh, the party of the first part to this agreement."

This guaranty was signed and sealed by Keeler and others, but...