Loughney v. Huntsman Construction Co.

Citations

• 252 Pa. 131
• 97 A. 179
• 1916 Pa. LEXIS 581

Syllabus

<p>Affidavits of defense — Insufficiency—Contracts—Building contracts — Breach—Completion of building by owner — Owner’s claim for excess cost — Claim against surety.</p> <p>1. Where in an action of assumpsit matters alleged in the statement of claim are such as could -well be learned by the defendant by inquiring in proper quarters mere formal denials in his affidavit of defense are insufficient.</p> <p>2. In an action upon a penal bond executed by the defendant surety company as surety and a construction company as principal to indemnify plaintiff from any loss by reason of the failure of the construction company to faithfully perform a contract to construct a building for the plaintiff, who was compelled by reason of the construction company’s default to complete the building at a cost in excess of the contract price, an affidavit of defense was insufficient which failed to deny that the construction company made default, or that the owner took possession of the building and completed it at the amount sued for, but averred that a copy of the plans and specifications was not annexed to the copy of the contract referred to in the bond, but no question arose involving such plans and specifications; that there was a denial that plaintiff’s exhibit D was formally served on the date averred in the statement but there was no denial that it was received or subsequently came to the knowledge of the parties; that certain alterations were made, tbe extent and value of which the defendant did not know, where the contract permitted such alterations; and that plaintiff had made certain payments to the contractor before they were due, although forbidden so to do by the terms of the bond, but there was no allegation that damage resulted from such payments.</p>