Lucas v. Ætna Indemnity Co.

Citations

• 32 Pa. Super. 148
• 1906 Pa. Super. LEXIS 307

Syllabus

<p>Contract — Subcontractor—Performance of contract.</p> <p>In an action upon a contract it appeared that the defendant was engaged in completing a building operation, and that the plaintiffs were manufacturers and dealers in paint. The defendants had an agreement with a contracting painter by which the latter was to do painting on the building operation, payments to be made in installments. The contractor, the plaintiffs and defendant entered into an agreement by which the plaintiffs were to deliver paint on the certificate of the contractor, and were to be paid by defendant twenty-five per cent of the amount due the contractor as each payment matured. It was further agreed that an amount not exceeding a sum stated should be set aside by defendant from the cash reserve of the contract between the contractor and the defendant, and that this should be paid or such proportions thereof that might be due to the plaintiffs, when the said cash or reserve was available. The cash reserve was not payable until thirty days after the final completion of the painting upon the entire operation. It appeared that payments were made to plaintiff, but not in the exact installments, or at the exact periods provided for in the contract between the defendant and the contractor. There was no sufficient evidence to support a finding that substantial performance had been had of the contract between the contractor and the defendant, so as to make the cash reserve available, as required by the contract between plaintiffs and defendant. It did not appear that the plaintiffs were in any way misled or injured by the fact that payments to the contractor were not made by the defendant in the exact installments, or at the exact periods provided by their agreement with him. Held, that plaintiffs were not entitled to recover.</p>