City of Philadelphia, to Use of Taylor v. Malone

• Decision Date: 26 February 1906
• Docket Number: 172
• Citation: 63 A. 539,214 Pa. 90
• Parties: Philadelphia to use, Appellant, v. Malone
• Court: Pennsylvania Supreme Court

63 A. 539

214 Pa. 90

Philadelphia to use, Appellant, v. Malone

No. 172

Supreme Court of Pennsylvania

February 26, 1906

Argued January 5, 1906

Appeal, No. 172, Jan. T., 1905, by plaintiff, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1903, No. 2783, for defendant non obstante veredicto in case of City of Philadelphia to use of Edward L. Taylor v. Richard A. Malone and Richard J. Malone, trading as R.A. Malone & Co., and Fidelity and Deposit Company of Maryland. Affirmed.

Assumpsit on a municipal contractor's bond.

Verdict for plaintiff for $1,687.15 subject to question of law reserved.

On a motion for judgment for defendants BEITLER, J., filed the following opinion:

R. A Malone & Co. entered into a contract with the city to excavate and construct the Oak Lane reservoirs for the sum of $350,000. The contract provided that they should "furnish and deliver all the materials, and do and perform all the work and labor required" in constructing said reservoirs, according to the proposals and specifications which are made a part of the contract, the work to be completed in fifteen months under a penalty.

In the proposal Malone & Co. agree "to furnish all the labor and materials necessary to perform the whole of the work."

The proposals provide as follows:

"173. Price to include. -- The prices specified in the accepted proposal shall include the furnishing and erection in a good sound, substantial and workmanlike manner, of all items required for the completion of the whole work proposed for, and shall include all items shown on the drawings and described in the specifications; also all dams, pilings, shoring, sheeting, forms, centering, falseworks, tramways, machinery, scaffolding, pumping, labor, workmanship, tools and materials necessary and best adapted to the efficient, prompt and safe execution of both the permanent and temporary works.

"174. Necessary to render the work complete. -- If any workmanship or materials be required, which are obviously necessary to carry out the full intent and meaning of the plans, details, diagrams and specifications, although the same may not be either directly or indirectly so specifically noted by drawings or specifications, the contractor is hereby bound to consider and provide for the same in his proposal for the work, as fully as if they were so specifically denoted, and shall execute the same without charge or claim therefor."

Malone & Co. gave bond as required by the ordinance of 1896. They contracted with Gilman-McNeill Co. to excavate one of the reservoirs. The latter purchased from Edward L. Taylor coal which was used in driving the steam shovel which excavated the dirt and loaded it on the cars, and in the locomotive which hauled away the cars containing that dirt.

Some of the coal was used in the office building on the grounds and for other purposes, but Taylor applied the payments made on account to this portion of the bill, leaving due only the price of the coal used for the steam shovel and the locomotive. Not being paid for the coal he brought suit on the bond, and their being no dispute as to the facts the trial judge gave binding instructions to find for the plaintiff, reserving the question, "whether there is any evidence in this case entitling the plaintiff to recover." This was held to be a good reservation: Fisher v. Scharadin, 42 W.N.C. 395.

The bond sued on is conditioned as follows:

"Whereas, the above bounden Richard A. Malone, et al. . . . . agreed to furnish all the materials and perform all the labor required in constructing . . . . a reservoir . . . . in strict and exact accordance with a certain proposal and specifications attached thereto and made part thereof. Now the condition of this obligation is such that if the said Richard A. Malone, et al. shall and will promptly pay . . . . all sums of money which may be due for labor and materials furnished and supplied or performed in and about the said work," etc.

The point reserved is whether coal is "material" within the meaning of the bond in suit and the ordinance of March 30, 1896.

There is no decision or dictum by either our Supreme or Superior Courts upon this question of the meaning of the term "materials" as used in the ordinance of March 30, 1896, so far as we have been able to ascertain. The ordinance has been several times before the Supreme and Superior Courts.

In Phila. v. Stewart, 195 Pa. 309, it was decided that each materialman independent of others had a right of action on the bond. Plaintiff had furnished lumber for a schoolhouse.

In Phila. v. Stewart, 201 Pa. 526, it was decided that the right of a materialman to sue on the bond was not adjudicated by a settlement theretofore made between the city and the contractor. The plaintiff had put in the plumbing of a building.

In Phila. v. McLinden, 205 Pa. 172, it was decided that a general laborer could recover upon the bond, because, in the language of the court, "the language of the bond to pay those who performed labor, is too clear to admit of doubt."

In Phila. v. Neill, 206 Pa. 333, it was decided that the question whether a materialman might waive the security of the bond, was not raised by the facts of that case. The plaintiff had furnished brick.

In Bowditch v. Gourley, 24 Superior Ct. 342, it was decided that a materialman who furnishes material to a subcontractor is entitled to sue on the bond the same as though he had furnished the material directly to the contractor, upon the ground that the liability is expressly stated to be for material furnished him or them. The plaintiff had furnished lime, sand and cement.

Questions arising under the federal statute which is almost identical with our ordinance, and bearing directly on the point under consideration, have been adjudicated.

In United States v. Surety Co., 21 Pa.Super. 159, a claim for demurrage -- extra freightage on stone delivered -- was not allowed in a suit on a bond given under the federal statute.

In United States v. Kimpland, 93 Fed. Repr. 403, a claim for board furnished the contractor's workmen was held not to be material or labor within the meaning of the federal statute. The court said:

"The liability of the sureties will not be extended by implication, or beyond the fair meaning of the statute or bond. The statute required the bond as security for the performance of the work of construction, and to insure the payment for 'labor and materials' supplied 'in the prosecution of the work.' To execute the work, materials were used. Such materials must be fashioned for placement in the structure, conducted to such place, and deposited therein."

In United States v. Morgan, 111 Fed. Repr. 474, claims for dump cars and derricks were held to be in the nature of tools and appliances used by the contractor "for his own convenience and advantage in the execution of his contract" and not materials within the prosecution of the bond. This case went to the circuit court of appeals, first circuit, reported in 114 Fed. Repr. 627 (1902), and the court said: "We are of opinion that the labor and materials here in controversy are plainly without the purview of the statute."

The latest reported decision is the case of United States to use of Standard Oil Co. v. The City Trust Safe Deposit & Surety Co., 30 Wash. L.R. 778. There the contractor had a contract to dredge a river. He purchased oil from the use plaintiff to be delivered on the dredge and consumed in its operation. The supreme court of the District of Columbia said (30 Wash. Law Rep. 778):

"This is a contract to do dredging for the government and not a contract to supply the government with machinery or oil for lubricating purposes; and the covenant of the surety is that it will see that the contractor pays for materials and labor to be used in doing the work mentioned in the contract and not to see that the machinery and appliances for doing the work or oil to facilitate their manipulation are paid for. . . . The machinery and materials furnished for its preservation and manipulation thereof have no legal relation to the contract because they do not enter into the work performed or become the property of the government."

This decision was affirmed by the court of appeals of the District of Columbia, reported in 21 App. (D.C.) Cases, 369.

The bond sued on in this case is even more restricted in the class of materials within its protection than the bonds given under the federal act.

The bond given under the act of congress is conditioned that the contractor "shall promptly make full payments to all persons supplying him labor or materials...