Francis Gannon's Executors v. Central Presbyterian Church of Mckeesport

• Decision Date: 13 January 1896
• Docket Number: 262
• Citation: 33 A. 1043,173 Pa. 242
• Parties: Francis Gannon's Executors, Appellants, v. Central Presbyterian Church of McKeesport, Pa., Owner or Reputed Owner, and D. M. White, Contractor
• Court: Pennsylvania Supreme Court

33 A. 1043

173 Pa. 242

Francis Gannon's Executors, Appellants, v. Central Presbyterian Church of McKeesport, Pa., Owner or Reputed Owner, and D. M. White, Contractor

No. 262

Supreme Court of Pennsylvania

January 13, 1896

Argued November 6, 1895

Appeal, No. 262, October T., 1895, by plaintiffs, from judgment of C.P. No. 1, Allegheny Co., March Term 1894, No 882, on case stated in favor of defendants. Affirmed.

Scire facias sur mechanic's lien.

The case stated was as follows:

The Central Presbyterian Church of McKeesport, one of the defendants, on May 16, 1892, entered into a written contract with D. M. White, the other defendant, for the erection and construction of a church building, and Francis Gannon, the original plaintiff herein, his executors having been substituted as parties since suit was brought, together with one G. F. Meyer, became sureties to the said Central Presbyterian Church on the bond of said White to said church for the performance of said contract, said bond being indorsed on said contract, of which said contract and bond, a true copy is annexed to the affidavit of defense of said church herein and is made part of this case stated.

That said White did build said church building under said contract according to the plans and specifications therein.

That said Gannon furnished to said White for the erection and construction of said building, lumber and materials to the value of three thousand six hundred and thirty-eight dollars and twenty-five cents ($3,638.25), being the amount for which the mechanic's lien is filed herein, which amount with interest from June 2, 1893, is the amount claimed by plaintiffs herein.

That said church paid said White in full for the whole contract price of said church before the lien herein was filed and without any release of lien having been filed by said Gannon.

If the court shall be of opinion that upon the foregoing facts the plaintiffs are entitled to recover the said amount claimed by them for said labor and materials furnished by said Gannon then judgment to be entered for the plaintiffs for three thousand six hundred and thirty-eight dollars and twenty-five cents ($3,638.25), with interest from June 2, 1893.

If the court shall be of opinion that the plaintiffs are entitled to recover, but not to an amount exceeding $2,000 with interest from June 2, 1893, then judgment to be entered for said amount.

But if the court shall be of opinion that the plaintiffs are not entitled to recover, then judgment to be entered for defendants.

The contract after providing for periodical payments to the contractor continued as follows:

"Provided, that in each case of the said payments, a certificate shall be obtained from and signed by the architect, to the effect that the work is done in strict accordance with drawings and specifications, and that he considers the payment properly due; said certificate, however, in no way lessening the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the drawings and specifications, either in execution or materials; and provided further, that before the last payment is made all releases must be properly signed by the parties furnishing labor and materials on the building, that he has carefully examined the records and finds no liens or claims against said works, or on account of the said contractor; neither shall there be any legal or lawful claims against the contractor, in any manner, from any source whatever, for work or materials furnished on said works."

The court entered judgment for defendants on the case stated.

Error assigned was entry of judgment as above.

Judgment affirmed.

J. McF. Carpenter, Jno. E. Speer with him, for appellants. -- The effect of a voluntary departure by obligee from the terms of the contract is to discharge the surety: Stevenson v. Grant, 36 Minn. 439: Rice v. Doyle, 34 Minn. 400; Miller v. Stewart, 9 Wheaton, 680; Hughes v. Ranken, 7 Phila. 175.

If one surety is...