Folz v. Tradesmen's Trust & Saving Fund Co.
| Decision Date | 24 February 1902 |
| Docket Number | 340 |
| Citation | 201 Pa. 583,51 A. 379 |
| Parties | Folz v. Tradesmen's Trust and Saving Fund Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 15, 1902 [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal, No. 340, Jan. T., 1901, by defendant, from order of C.P. No. 4, Phila. Co., June T., 1899, No. 1003, dismissing exceptions to referee's report in case of Leon H. Folz v. The Tradesmen's Trust and Saving Fund Company and F.J. Amweg. Affirmed.
Exceptions to report of Richard C. Dale, Esq., referee.
The referee's report was in substance as follows:
FINDINGS OF FACT.
The defendants executed a bond in favor of the plaintiff reciting that Amweg had a contract with the city of Philadelphia for the building of the annex to the Boys' High School, and that defendants had become surety to the city for the faithful performance of the conditions upon the part of the said Frederick J. Amweg, the condition was expressed in these words:
"Now the condition of this obligation is such, that if the said contract so entered into as aforesaid between the said Frederick J. Amweg and the city of Philadelphia shall be completed so far as the same relates to the period when the second payment on account of said contract, to wit, Thirty-seven thousand eight hundred and seven and 42/100 Dollars ($37,807.42) shall become due and payable by the terms and conditions of the said contract, then this obligation to be void or else to be and remain in full force and virtue."
The consideration of the bond upon which suit is brought as between the plaintiff, Leon H. Folz, and Frederick J. Amweg, the principal in said bond and one of the defendants, was a loan of money made by Folz to said Amweg, the payment of which loan the bond was intended to secure.
Under date of March 9, 1896, Frederick J. Amweg executed to the Tradesmen's Trust and Saving Fund Company a writing reciting the making of the agreement with the city of Philadelphia, the fact that the Tradesmen's Trust and Saving Fund Company was his surety, that the time for the completion of the building had expired and the surety had been notified by the board of education on the part of the contractor, in consideration whereof Amweg assigned to the trust company all his right, title, interest, claim and demand in and to the articles of agreement, and appointed the tradesmen's company his attorney to receive all moneys due or thereafter to become due under said contract.
Under date of May 19, 1896, the committee on property of the board of education adopted a resolution as follows:
"Whereas, Frederick J. Amweg, the contractor for the erection of the Richmond & Ontario Street School building, and the Annex to the Boys' High School building, has failed to fulfill his contracts for the erection of said buildings, whereby he has forfeited all rights under said contracts; and, whereas, the Tradesmen's Trust and Saving Fund Co., sureties for said Amweg, have offered and undertaken on their own behalf to fulfill said contracts, and the board of public education has accepted said Trust Company as substitute for said Amweg in the performance of said contracts, and has agreed, if said Trust Company properly completes said buildings in accordance with the provisions of said contracts, to pay to them the amounts agreed upon in said contracts to be paid for the erection of said buildings; now resolved that by reason of said Amweg's forfeiture of all rights under said contracts that the Secretary of the Board of Public Education be instructed to draw no warrants for work in the erection of said buildings to or in favor of said Frederick J. Amweg, but all such warrants shall when drawn be drawn to the order of said Tradesmen's Trust & Saving Fund Co., so as aforesaid substituted in place of said Amweg."
Finally, the work having been done, the Tradesmen's Trust and Saving Fund Company received from the city the sum of money which was payable for the completion of said work, but the amount was $22,766.11 less than the defendants had paid for finishing the work prescribed by the contract.
The question in this case is a very narrow one. It requires a determination of the meaning of the words contained in the condition of the bond in suit, and particularly of the words:
"If the said contract so entered into as aforesaid between the said Frederick J. Amweg and the city of Philadelphia shall be completed . . . then this obligation to be void."
On behalf of the defendant it is contended that the meaning is, if the work was done and the materials furnished, which by the terms of the contract the city of Philadelphia were entitled to demand should be done or furnished, that then the contract was completed.
In support of this view the defendant suggests, with some apparent force, that if Amweg had died and the contract had been completed by Amweg's executors or administrators, or that if Amweg, through a subcontractor or agent, had made provision for the doing of the work, that then the condition of the bond would have been performed.
The referee has no doubt that if the work had been done in either of the methods above suggested, that the contract would have been completed as required by the condition of the bond. There is a manifest distinction, however, between the cases suggested by the hypothesis of the defendants and the case disclosed in the findings of fact. In the hypothetical cases the work is done by some one who acts in the right of or on behalf of Amweg. There is an absolute privity of relation between Amweg as contractor, and his executor or administrator, subcontractor or agent. By operation of law the contract bound Amweg's personal representatives although they are not expressly named therein, and in the event of Amweg's death such personal representatives would have had the right to complete the work and receive the price prescribed by the contract. So also in a case where performance by a subcontractor is not prohibited by the terms of the contract, the work done by such subcontractor in contemplation of law is done by the principal contractor. Such, however, is not the aspect of the facts disclosed by the evidence and set forth in the referee's findings of fact. Amweg failed in the performance of his contract and ceased operations. The work subsequently done by this defendant was done under an arrangement made between the board of education and the defendant. Such new arrangement was based upon the...
To continue reading
Request your trial