Philadelphia v. Pierson

Citations

• 217 Pa. 193
• 66 A. 321
• 1907 Pa. LEXIS 684

Syllabus

<p>Principal and surety — Subcontractor—Contractor’s bond — City of Philadelphia — Judgment.</p> <p>In an action on a bond given to the city of Philadelphia by a contractor for a school building to secure subcontractors and material-men, whore it appears that judgment had been entered by default against the contractor for the price of the material furnished by plaintiffs, as set forth in the contract, the plaintiffs may offer in evidence the contract and the record of the judgment against the contractor to establish the amount of their claim, without producing any independent evidence as to the market value of the work and materials furnished. Independent evidence would only be required if mistake or collusion between the contractor and the plaintiffs to defraud the surety were shown.</p> <p>In such a case the defendant cannot claim that the action is premature because the contract provided that the plaintiff was to be paid only in proportion as the contractor received his payments from the city, and that five per cent was to be retained for a year after final payment by the city, and that this time had not expired. The surety’s undertaking is to pay what becomes due from the contractor to the plaintiff on the former’s default. The judgment against the contractor is therefore conclusive.</p> <p>In an action by a subcontractor against a surety in a penal bond given by a contractor, where the statement of claim avers distinctly that a bond of indemnity against costs had been given by the use plaintiff, and been approved by the city solicitor, and the defendant raises no issue as to this averment either by plea in abatement, or notice under special matter, but files the general plea, the plaintiff is not called upon at the trial to prove affirmatively the approval of the indemnity bond by the city solicitor.</p>