Philadelphia v. Stange
| Decision Date | 05 January 1932 |
| Docket Number | 327 |
| Citation | 306 Pa. 178,159 A. 7 |
| Parties | Philadelphia, to use, v. Stange et al., Appellants |
| Court | Pennsylvania Supreme Court |
Argued December 3, 1931
Appeal, No. 327, Jan. T., 1931, by defendants, from judgment of C.P. No. 4, Phila. Co., Dec. T., 1925, No. 4398, on verdict for plaintiff, in case of Philadelphia, to use of Dourte & Irelan, Inc., to use of the White Company, v Ottomar Stange and Anna A. Stange, trading as Stange Construction Co., and Southern Surety Company. Affirmed.
Assumpsit on bond. Before FINLETTER, P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiffs for $18,283.35. Defendants appealed.
Errors assigned were various rulings and instructions, quoting record seriatim.
The judgment is affirmed; costs to be paid by appellants.
Samuel Kagle, with him George C. Klauder, for appellants. -- The learned trial judge reviewed the evidence of plaintiffs bearing on a material issue of fact without calling the attention of the jury to the evidence introduced by defendants in contradiction and opposition thereto.
The learned court below, in presenting only one side of the case committed reversible error. This proposition has been squarely ruled in Burns v. P.R.R., 213 Pa. 280.
It is now well settled that, under a general exception, a litigant may assign all errors of law or any matter which is inadequately presented and which tends to mislead the jury: Mastel v. Walker, 246 Pa. 65; Weiss v. Guarantee & Accident Co., 280 Pa. 325, 330; Snyder v. R.R., 284 Pa. 59, 62; Penrose v. Coal Co., 289 Pa. 519, 525; Byrne v. Ry., 219 Pa. 217.
The use-plaintiff, the White Company, who was neither a laborer nor a materialman, was a stranger to the bond and had no right to bring suit thereon: Erie, to use, v. Diefendorf, 278 Pa. 31; Greene Co. v. Surety Co., 292 Pa. 304; Dark v. Johnston, 55 Pa. 164.
Merely furnishing trucks to haul dirt to the area covered by the bond is not such a claim for labor or materials as was intended to be secured by the bond in suit: U.S. v. Surety Co., 21 Pa.Super. 159; Robertson v. Indemnity Co., 77 Pa.Super. 422; Moyer v. Slate Co., 71 Pa. 293; Phila. v. Trust Co., 38 Pa.Super. 286.
Thomas C. Egan, with him Wilheim F. Knauer and Wolf, Block, Schorr & Solis-Cohen, for appellees. -- A use-plaintiff's case rests on the rights of the legal plaintiff: Stern Mfg. Co. v. Smith, 273 Pa. 39; Automobile Securities Co. v. Wilson, 293 Pa. 143.
The assignee of a labor or material claim on a bond acquires all the rights of his assignor: Title G. & T. Co. v. Crane Co., 219 U.S. 24.
Hauling and placing fill constitutes "labor performed" within the meaning of the bond: Com., to use, v. Surety Co., 253 Pa. 5.
The court's charge was neither inadequate nor misleading: Rochester First Nat. Bank v. Fry, 294 Pa. 425; Cook v. Donaldson, 296 Pa. 389; Saxman v. McCormick, 278 Pa. 268, 273; Schlossstein v. Bernstein, 293 Pa. 245.
Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
This action in assumpsit is to recover on a bond given by defendants to the City of Philadelphia to protect laborers and materialmen under a contract with defendant city. The pertinent facts follow: On June 22, 1925, the Stange Construction Company entered into a written contract with the City of Philadelphia to grade Pattison Avenue from Tenth Street to Eleventh Street, Tenth Street from Bigler Street to Pattison Avenue and Eleventh Street from Pattison Avenue to Terminal Avenue. On the same day, the Stange Construction Company, as principal contractor, together with the Southern Surety Company, as surety, delivered their joint bond to the municipality in the amount of $38,400 to secure payment of labor and material claims in accordance with the provisions of an ordinance of council entitled: "An ordinance for the protection of persons, other than those contracting directly with the city, who perform labor and furnish materials for the erection, construction, addition, removal, alteration, or repair of buildings, structures or other work and improvements for public use, including the work of setting up and equipping the same for the City of Philadelphia." Section 2 of the ordinance provides, among other things, that "Any person so performing labor or furnishing and supplying materials in the prosecution of the work covered by said contract and not receiving payment therefor, shall have a right of action and shall be authorized to bring suit in the name of the City of Philadelphia on said bond, for his use and benefit, against said contractor and against the surety on said bond." The work to be done under this contract was in connection with grading land, a part of the preparation for the Sesquicentennial Exposition. The Stange Construction Company engaged the Hastings Dump Truck Company as subcontractors to grade a portion of the area covered by the above contract, and the subcontractor in turn orally engaged Dourte & Irelan, Inc., to haul fill to the area which they had agreed to grade for the Stange Construction Company. Dourte & Irelan, Inc., was paid for the work done by it to the end of August, 1925, but not for work done between September 1st and September 26, 1925. It is for the recovery of this item, amounting to $13,764.35, with interest from September 26, 1925, that the present action was instituted. On September 26, 1925, the Hastings Company abandoned the job and thereafter Dourte & Irelan, Inc., continued to work for the Stange Construction Company direct. Dourte & Irelan, Inc., assigned its claim against defendants on the bond filed with the city to the White Company, which assignee appears in this suit as the second or ultimate use-plaintiff. The pleadings consisted of a statement of claim and separate but identical affidavits of defense filed by the Stange Construction Company and the Southern Surety Company defendants. Witnesses were called for both sides and there appears considerable conflict in the testimony. The jury returned a verdict for plaintiffs for $18,283.55, which represented the claim with interest. The defendants filed motions for a new trial and judgment n.o.v., both of which were refused. Final judgment being entered on the verdict, defendants appealed.
Appellants present four contentions in resisting the judgment appealed from, each of which we shall mention in the discussion which follows.
As above stated, Dourte & Irelan furnished trucks and hauled earth to the scene of the grading. Appellants' contention that "merely furnishing trucks to haul dirt to the area covered by the bond [was] not such a claim for labor or materials as was intended to be secured by the bond in suit," is untenable under the facts here presented. The scope of the bond is to be determined, in this character of case, in the light of the purpose or contemplation of the principal contract let: Phila. v. Jackson Co., Inc., 280 Pa. 319, 324. The contract contemplated grading definite city streets where a fill was necessary. Without the hauling and putting in place of the material in question, there could have been no grading. The ordinance under which the bond was given recognized the necessity for such incidents as the hauling of fill when it included in its protective clause the words, "or other work and improvements for public use." Section 2 of the ordinance gave a right of action to those supplying labor and materials "in the prosecution of the work covered by said contract, and not receiving payment therefor." The hauling of fill was plainly "other work . . . for public use," and, in view of the nature of the improvement sought to be accomplished by the contract, there is no reason to hold that Dourte & Irelan's contribution was outside the contemplated purview of the contract. The labor performed by the Dourte firm was indispensable to the contemplated performance of appellants' contract with the city, and, as in Phila. v....
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