Clement v. City of Philadelphia

Citations

• 137 Pa. 328
• 20 A. 1000
• 1891 Pa. LEXIS 889

Syllabus

<p>1. When a oity awards a contract for the performance of a public work to one who is its judgment debtor at the date of the contract, the city can set off its judgment against the contractor, in an action brought by him, after performance, to recover the price of the work done.</p> <p>2. The fact that the surety in the contractor’s bond for the performance of his contract, advanced to the latter the moneys necessary to perform, as a loan under act of April 6, 1870, P. L. 56, to be compensated by a share of the profits in lieu of interest, does not impair the city’s right of set-off.</p> <p>3. Nor does the fact that, by the agreement between the surety and the contractor, the former was to receive, as security for his advances, all warrants for moneys to become due on the contract, give him an equitable claim superior to the city’s right of set-off: Philadelphia v. Loekhardt, 73 Pa. 211; Ramsey’s App., 2 W. 228; distinguished.</p> <p>4. At all events, when the city, with the contractor’s consent, and without any notice that the surety had any interest whatever in the contract, appropriated a part of the contract price to the payment of its judgment against the contractor, the surety has no right of action against the city for the sum so appropriated.</p> <p>5. The filing with the city controller of a power of attorney authorizing the surety to receive all warrants coming to the contractor, was not notice of the surety’s interest, and imposed on the city no duty to notify him of the contractor’s indebtedness, and of its purpose to use the same as a set-off.</p>