Weightman v. Union Trust Co.
| Decision Date | 21 March 1904 |
| Docket Number | 107 |
| Citation | 208 Pa. 449,57 A. 879 |
| Parties | Weightman v. Union Trust Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 18, 1904
Appeal, No. 107, Jan. T., 1903, by defendant, from order of C.P. No. 4, Phila. Co., March T., 1902, No. 3441, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William Weightman v. Union Trust Company. Reversed.
Assumpsit on a bond.
Rule for judgment for want of a sufficient affidavit of defense.
The opinion of the Supreme Court states the case.
The court made absolute rule for judgment for want of a sufficient affidavit of defense.
Error assigned was the order of the court.
The assignments of error are sustained and the judgment is reversed, and the record is remitted with directions to discharge the rule.
Thomas Raeburn White and Page & Page, for appellants. -- The defendant's contract was an agreement to indemnify the plaintiff, as mortgagce, for loss occasioned by any deficiency in his security, if caused by Steelman's failure in certain particulars to complete his contract Wheeler v. Equitable Trust Co., 206 Pa. 428.
The plaintiff's statement is defective in that it does not aver that the security was deficient in value, and that such deficiency was caused by Steelman's default: Wheeler v. Equitable Trust Co., 206 Pa. 428.
J. C Stillwell, for appellee. -- The defendant, having received plaintiff's money to be used in making the street improvements, is liable for the value of those not made.
Before MITCHELL, C.J., DEAN, BROWN, MESTREZAT, POTTER and THOMPSON, JJ.
Our consideration of the affidavit of defense filed in this case has led us to a different conclusion from that reached by the learned judge of the court of common pleas.
The plaintiff, William Weightman, agreed to lend a large sum of money to one Walter E. Steelman, and to take as security a mortgage upon certain lots of ground, upon which Steelman agreed to erect certain buildings and to make certain street improvements. For his further protection, Weightman procured a bond from the defendant, the Union Trust Company, by which it agreed to hold him harmless against loss on account of any deficiency in his mortgage security resulting from failure by Steelman to complete his contract in certain particulars. The condition of the bond is expressed as follows: "If the said, the Union Trust Company, its successors or assigns, shall well and sufficiently save, defend, keep harmless and indemnify the said William Weightman, his heirs, executors, administrators and assigns (being the holder of said mortgage for $172,800) of and from all loss, costs, damages and expenses occasioned by said failure or omissions on the part of the said Walter E. Steelman, or his heirs, executors, administrators or assigns, to keep, observe and perform any one or more of the said covenants, promises and agreements contained in 'section second' 'section fourth' and 'section seventh' of the said agreement, or either or any thereof, then this obligation to be void."
It is alleged that Steelman failed to do certain street paving, and did not construct a sewer, as required by the provisions of section second of the agreement between himself and the plaintiff.
It is very clear, however, that the undertaking of the defendant as shown by the wording of the bond, was not that it would do the particular things in question which Steelman had bound himself to do. The obligation of the defendant is limited to an agreement to save the plaintiff harmless from all loss, costs, damages and expenses occasioned by the failure of Steelman to carry out his contract. Steelman did bind himself by an affirmative covenant to do certain specific things; that is, to build a number of houses and finish them completely, and provide sewerage and street paving. The defendant, on the other hand, under the terms of its bond, did not...
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