Dunbar v. Fleisher

Citations

• 137 Pa. 85
• 20 A. 520
• 1890 Pa. LEXIS 954

Syllabus

<p>1. When an obligation, signed by a surety, is given in pursuance of k provision therefor in a contract between his principals and the obligee, and it expressly refers to such contract, it should be construed in the light which the principal contract throws upon its purpose and intended scope.</p> <p>(a) A contractor for the erection of a county bridge sub-let the mason work by a written contract providing that he should pay for two thirds thereof when that quantity should be done, and if he should then give security for the price of the remainder, the same should be paid when Ihe work was fully completed.</p> <p>(5) The agreement provided further, as an alternative, that the subcontractors might give security “for the money for the balance of the work to be done,” in which case the contractor should pay for said remaining one third of the work in advance of its commencement by the sub-contractors.</p> <p>(c) After the sub-contractors had done two thirds of the work, and had been paid therefor, they received from the contractor an order on the county commissioners for the price of the remaining one third, and gave to him a paper, executed by a surety, reciting said order and engaging for “ the faithful performance of said mason work to said bridge as per contract:</p> <p>2. Construed in the light of the principal contract, the obligation of the surety did not embrace any liability for defects in the two thirds of the work already done by his principals, but was simply an engagement, in consideration of an advance payment for the remaining one third, that they should do the work so paid for.</p> <p>3. Wherefore, the order on the county commissioners having been refused payment, although accepted by the sub-contractors on the assurance of the contractor that it would be promptly paid, the consideration of the surety’s undertaking wholly failed, and he was not liable even for a failure of the sub-contractors to do the rest of the work; nor were they bound to perform