National Building & Savings Ass'n No. 2 v. Fink

Citations

• 182 Pa. 52
• 37 A. 1009
• 1897 Pa. LEXIS 768

Syllabus

<p>Principal and surety — Building contract — Novation—Judgment—Opening judgment — Discharge of surety.</p> <p>On a proceeding to open a judgment entered upon a warrant of attorney accompanying a bond, it appeared that F., one of the defendants, had had a building contract with plaintiff, and that the other defendants had been his sureties in this contract. Before the building was completed it was ascertained that F. would be in default, and that liens would be entered. Upon the application of the sureties, plaintiff advanced the money to make good F.’s default, and the sureties on the building contract became the sureties upon the bond given to secure the advances. Subsequently judgment was entered upon the warrant accompanying the bond. The sureties claimed that misrepresentations had been made to them by the plaintiff to induce the execution of the bond; that the plaintiff had failed to retain the ten per cent of sums due F. as the building progressed, under the terms of the building contract. One of the sureties also claimed that plaintiff had released the real estate of the other surely. It did not appear, however, what effect such a release had upon the other surety’s ability to respond to the judgment. Therewas.no sufficient evidence of misrepresentations by plaintiff. Held, (1) that it was too late, after the settlement of the building contract, to complain that the ten per cent had not been retained; (2) that the case should be remitted to afford an opportunity to investigate and ascertain whether the value of the right of contribution against the surety released had been destroyed or seriously impaired.</p>