Wells v. Philadelphia

Citations

• 270 Pa. 42
• 112 A. 867
• 1921 Pa. LEXIS 321

Syllabus

<p>Principal and surety — Municipal contract—■Suit by surety against city—Completion of contract—Beadvertisement—Betained percentages — Subrogation—Parties—■Federal court receiver — Waiver of delay and damages—Liquidated damages—Penalty—Act of June 1, 1885, P. L. 87.</p> <p>1. A receiver appointed by the federal court need not be made party plaintiff, in an action in a state court, where his appointment did not authorize or oblige him to sue, or give him any authority over suits instituted, and where nothing had been adjudicated in the federal court that would be a barrier to an action without him.</p> <p>2. Where two claimants appear for the same fund against a municipality, and the latter defends on the merits and the law in the trial of one of the cases, the municipality may protect itself against the other claimant,—by notice to appear as party defendant, and thus determine the second claimant’s status as well as the liability of the city under the general contract.</p> <p>3. Where two claimants appear for the same fund against a municipality, they may institute separate actions, and the fact that one is the surety who completes the work under a contract, will not defeat his right to sue.</p> <p>4. A city is not bound to recognize partial assignments of contracts.</p> <p>5. When a municipal contractor defaults, the surety is obliged to complete the contract or respond under the bond. In completing the work it exercises its right under the contract as party originally alternately bound by its terms.</p> <p>6. Such relation is a continuation of the original contract. The . surety, under the contract, succeeds to the rights of the defaulting contractor.</p> <p>7. Retained percentages and the balance due on the contract become the property of the surety, its relation dating back to and even with the property owners.</p> <p>8. From this fund it is entitled to sufficient to indemnify itself against all loss on account of the contract. The contractor cannot, by assignm