Lender v. Kline

• Decision Date: 01 April 1895
• Docket Number: 194
• Citation: 167 Pa. 188,31 A. 550
• Parties: William Lender et al. v. Simon Kline et al. Simon Kline's Appeal
• Court: Pennsylvania Supreme Court

31 A. 550

167 Pa. 188

William Lender et al. v. Simon Kline et al.

Simon Kline's Appeal

No. 194

Supreme Court of Pennsylvania

April 1, 1895

Argued March 5, 1895

Appeal, No. 194, July T., 1894, by Simon Kline, from judgment of C.P. Berks Co., Oct. T., 1892, No. 39, on verdict for plaintiffs. Affirmed.

Assumpsit on a guaranty of a building contract. Before ERMENTROUT, P.J.

At the trial it appeared that on January 8, 1892, D. C. Sharp & Son contracted to build three three-story brick buildings for William Lender and G. Fred Mertz. Simon Kline became the guarantor of Sharp & Son for the faithful performance of the work.

The agreement in writing upon which the suit was brought was as follows:

"For a valuable consideration, we the undersigned do hereby guarantee the faithful performance of the agreement to be attached hereunto, and we do further indemnify the said Wm Lender and G. F. Mertz against any and all liens that may or might be filed or entered against the three (3) three-story brick houses to be built for the said Wm. Lender and G. F Mertz by the contractors D. C. Sharp & Son for materials furnished or for work done at said houses.

"In witness whereof we have hereunto set our hands and seal this 9 day of Jan. 1892.

Contractor D. C. SHARP [SEAL]

Contractor W. A. SHARP [SEAL]

SIMON KLINE [SEAL]"

Witness JNO. EGE, M. D.

Witness HOWARD S. HARTMON.

Before the building was completed, D. C. Sharp absconded, leaving a number of bills unpaid. Mertz who had purchased Lender's interest in the buildings, informed Kline of the outstanding bills, and he was directed by Kline to finish the houses and pay the bills. Several of the bills were paid upon written orders given by Kline. Mertz completed the houses in the most economical manner possible.

Defendant's point, among others, was as follows:

"2. As the bond on which suit is brought is a guaranty or indemnity bond, the plaintiff must first show due diligence on his part to recover the amount of his claim from D. C. Sharp & Son, and his inability to collect it, and there being no evidence that any effort was made to collect the same from D. C. Sharp & Son, this action is premature and there can be no recovery. Answer: Refused."

Verdict and judgment for plaintiff for $719.21. Simon Kline appealed.

Error assigned, among others, was (1) instruction as above, quoting it.

C. H. Schaeffer, for appellant, cited: Johnson v. Chapman, 3 P. & W. 18; Isett v. Hoge, 2 W. 128; Brown v. Brooks, 25 Pa. 210; Nat. L. & B. Society v. Lichtenwalner, 100 Pa. 100; Hoffman v. Bechtel, 52 Pa. 190; Gilbert v. Henck, 30 Pa. 205; Janes v. Scott, 59 Pa. 178; Rudy v. Wolf, 16 S. & R. 79; Willard v. Wickham, 7 Watts, 292: McClurg v. Fryer, 15 Pa. 293; Kirkpatrick v. White, 29 Pa. 176.

Wm. Kerper Stevens, of Stevens & Stevens, for appellee, cited: Brandt on Suretyship, section 82; Levan's App., 112 Pa. 294; Janes v. Scott, 59 Pa. 178; Brown v. Brooks, 25 Pa. 210; Gibbs v. Cannon, 9 S. & R. 198; Tinkum v. Duncan, 1 Grant, 228.

Before WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

PER CURIAM:

The written agreement signed by Kline was one of guaranty for the performance by Sharp of his contract with the plaintiff. If he had stood upon this contract his present contention...