Park Paving Co. v. Kraft

• Decision Date: 17 July 1918
• Docket Number: 29
• Citation: 262 Pa. 178,105 A. 39
• Parties: Park Paving Co., Appellant, v. Kraft et al
• Court: Pennsylvania Supreme Court

105 A. 39

262 Pa. 178

Park Paving Co., Appellant, v. Kraft et al

No. 29

Supreme Court of Pennsylvania

July 17, 1918

Argued May 8, 1918

Appeal, No. 29, Jan. T., 1918, by plaintiff, from judgment of C.P. Erie Co., Sept. T., 1908, No. 38, for defendant, in case tried by a judge without a jury, in case of The Park Paving Co. v. George H. Kraft and Curtis Johnson, now by substitution James D. Johnson and Elizabeth Johnson Duddenhoeffer, Executors of Curtis Johnson, deceased. Affirmed.

Assumpsit on two bonds given to secure the performance of street paving contracts. Before WHITTELSEY, J.

The opinion of the Supreme Court states the fact.

The court found in favor of the executors of Curtis Johnson, the surety on the bonds, and entered judgment on its findings. Plaintiff appealed.

Errors assigned were in dismissing exceptions to findings of fact and law and the judgment of the court.

The judgment is affirmed.

Wm. A McConnell and Charles F. Haughney, for appellant.

Charles P. Hewes, for appellees.

Before BROWN, C.J., STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.

OPINION

MR. JUSTICE WALLING:

This is an action of assumpsit on two bonds given to secure the performance of street paving contracts. It was heard by the court, jury trial having been waived. On August 12, 1903 plaintiff, a contracting corporation located at Rochester, Pa., entered into a written contract with the City of Corry, Erie County, for the construction of a brick pavement in Center street. The work was to be commenced on ten days' notice from the city engineer and completed within ninety days thereafter. Later, on September 11, 1902, plaintiff entered into a written contract with the Borough of Union City in said county for the construction of a brick pavement in High street; the same to be commenced on five days' notice from the borough and completed within forty-five working days thereafter. Before the work was started, plaintiff sublet the contracts to defendant, George H. Kraft, a contractor residing at Erie, who began work on both streets the same fall, but failed to complete either within the required time. In fact, he abandoned the Corry contract unfinished in January, 1903, and it was completed later by plaintiff at a substantial loss, including penalty for delay. Kraft finished the work at Union City, May 4, 1903, after incurring penalty for delay and leaving a large amount of unpaid bills, for labor, etc., in violation of his contract and to the damage of plaintiff. The trial court found that Kraft's breach of the Corry contract had caused plaintiff damage to the amount of $2,820, and his breach of the Union City contract damage to the amount of $2,475. The contracts stipulated that Kraft was to furnish plaintiff a bond in $3,000 for the faithful performance of the work at Corry and in $1,000 for that at Union City. However, he was permitted to proceed with the work without bonds until after he had defaulted and become liable for the damages above stated; then the question of the bonds came up and Kraft sought a surety. Curtis Johnson, whose executors are joined as defendants, was then in California and seems to have left his affairs at Erie in charge of his son, James D. Johnson, who, on May 23, 1903, at the request of Kraft, signed his father's name as surety on the bonds; his authority for so doing is conceded. The bonds were in the usual form and in terms referred to the future. James D. Johnson had no knowledge that any work had been done under the contracts or that any default had occurred or liability resulted. He understood the bonds to be security for future work and was not informed to the contrary by either Kraft or the plaintiff,...