Warner Co. v. North City Trust Co.

• Decision Date: 20 March 1933
• Docket Number: 130
• Citation: 166 A. 230,311 Pa. 1
• Parties: Warner Co. v. North City Trust Co., Appellant
• Court: Pennsylvania Supreme Court

166 A. 230

311 Pa. 1

Warner Co. v. North City Trust Co., Appellant

No. 130

Supreme Court of Pennsylvania

March 20, 1933

Argued January 10, 1933

Appeal, No. 130, Jan. T., 1933, by defendant, from judgment of C.P. No. 1, Phila. Co., March T., 1932, No. 10,220, for plaintiff, for want of sufficient affidavit of defense, in case of Warner Company v. North City Trust Company. Affirmed.

Assumpsit on written contract. Before BARNETT, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Judgment for plaintiff for $10,537.19 for want of a sufficient affidavit of defense. Defendant appealed.

Error assigned, inter alia, was order, quoting record.

The judgment is affirmed.

Thomas S. Lanard, for appellant. -- It is incumbent on the plaintiff to plead more than the mere fact that Ockman, Haberman has fully performed its contract and it has become entitled to payment: Harrity v. Title & Trust Co., 280 Pa. 237.

Plaintiff must show that the action of the architect in refusing to give a certificate is fraudulent, collusive, capricious or unreasonable: Thaler Bros. v. Greisser, 229 Pa. 512 518; Smith v. Piano Co., 239 Pa. 496; Payne v Roberts, 214 Pa. 568; Fay v. Moore, 65 Pa.Super. 615; Fay v. Lester Piano Co., 32 Pa.Super. 437.

Robert T. McCracken, of Montgomery & McCracken, with him John F. Headly, for appellee. -- Appellant was a surety and not a mere paying agent for Ockman, Haberman and Company: Cancelmo's Est., 308 Pa. 178; Gianni v. Russell & Co., 281 Pa. 320; First Nat. Bank of Hooversville v. Sagerson, 283 Pa. 406; Fidelity Title & Trust Co. v. Garland, 291 Pa. 297; Emmanuel v. Hughes, 295 Pa. 492; Myers v. Gibson, 304 Pa. 249.

The defense of non-production of vouchers is groundless: Alexander Lumber Co. v. Farmer City, 272 Ill. 264; Phillips v. Surety Co., 309 Pa. 1; Thaler Bros. v. Construction Co., 229 Pa. 512; Smith v. Piano Co., 239 Pa. 496; Payne v. Roberts, 214 Pa. 568; Fay v. Moore, 65 Pa.Super. 615; Fay v. Lester Piano Co., 32 Pa.Super. 437.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE SCHAFFER:

The court entered judgment against defendant for want of a sufficient affidavit of defense for $10,537.19, the amount of plaintiff's claim. Defendant appeals.

The action was brought upon two contracts of suretyship between plaintiff and defendant, executed by the latter for a consideration, both drawn in the same language, "For value received the North City Trust Company hereby guarantees to Warner Company the payment of the sum of $24,000 [in the other contract $3,000] for ready mixed concrete furnished to Ockman, Haberman and Company in and about the erection and construction of the Medical Tower Building at the Southeast corner of 17th and Latimer Streets, Philadelphia, Penna., when and as the same shall become due and payable out of the moneys due Ockman, Haberman and Company under their contract with Arey-Hauser Company, upon the receipt of vouchers properly signed by Ockman, Haberman and Company to the order of Warner Company and upon the approval of materials by the inspector of the North City Trust Company."

There is no denial that plaintiff furnished to Ockman, Haberman and Company the materials for which it claims payment. The dispute centers in the main over the construction to be given the words "shall become due and payable out of the moneys due Ockman, Haberman and Company under their contract with Arey-Hauser Company."

There are minor questions raised by appellants: (1) That the contract between Ockman, Haberman and Company and Arey-Hauser Company was not pleaded. (2) That it did not appear in the statement of claim when the money was due under that contract. (3) That it was not pleaded that there were funds in the hands of defendant out of moneys due Ockman, Haberman and Company. (4) That it was not alleged that plaintiff had supplied vouchers to defendant and the averment in the statement of claim that Ockman, Haberman and Company had "arbitrarily refused to supply" them was not sufficient to excuse this omission and to warrant recovery.

In view of the fact that the statement of claim avers that the contract between Ockman, Haberman and Company and Arey-Hauser Company had been fully performed, there was no necessity to plead that contract. The suit is not upon that contract and, moreover, performance of it is admitted. Accordingly defendant cannot complain that it is not set forth in the statement of claim.

As to the second position assumed by appellant, that it does not appear when the money was due under the Ockman, Haberman-Arey-Hauser contract, it is sufficient to point to the averment in plaintiff's statement that Ockman, Haberman and Company admit that the amount claimed is due to plaintiff, which averment is undenied.

The third position will be dealt with later in construing the terms of the contract sued upon.

The fourth position, that vouchers were not supplied by plaintiff, is not an adequate defense, when account is taken of the averment in the statement that they were not supplied because Ockman, Haberman and Company had arbitrarily refused to furnish them. As to this, see Fay v. Moore, 261 Pa. 437; Pittsburgh Lumber Co. v. Sharp, 190 Pa 256; Bush v. Jones, 144 F. 942; Hebert v. Dewey, 191 Mass. 403. The vouchers cease to be material in view of the undenied allegation...