Opinion
October 17, 1928.
December 13, 1928.
Municipalities — Contracts — Bonds — Bonds for labor and material furnished — Materials consumed in work.
A bond given for the construction of a sewer for a municipality provided that the principal should pay all sums of money which might be due for labor and materials furnished, supplied or performed in and about the performance of the work covered in the contract.
In an action of assumpsit on the bond by a material man it appeared that the materials furnished consisted of lumber used for forms, sheathing and shoring in connection with the construction of the sewer. None of the lumber so furnished remained in the completed structure as a component part thereof, but all of it was used up and destroyed in and about the prosecution or performance of the work, and was thereafter valueless.
Held: That the lumber so used did not become a component part of the completed structure, and, therefore, was not within the provisions of the bond.
The settled rule is that the words "material furnished" for any structure, work or improvement, apply only to such materials as enter into and become component parts of the construction, work or improvements contemplated, and do not include machinery, tools, fuel, oils or appliances used for the purpose of facilitating the work, nor does it include houses or stables used for such purpose, nor loss of time nor any other expenditure incurred for things which do not remain as a component part of the finished whole.
Appeal No. 257, October T., 1928, by plaintiff from judgment of C.P., No. 2, Philadelphia County, June T., 1927, No. 12,660, in the case of City of Philadelphia, to the use of Edgar S. Clothier, John M. Sharpe and William M. Sharpe, individually and trading as Clothier and Sharpe Bros., v. Perna Engineering and Contracting Co., a corporation, and The Fidelity and Casualty Company of New York, a corporation.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Assumpsit on bond. Before GORDON, J.
The facts are stated in the following opinion of the court below:
This is a suit on a bond, given to the City of Philadelphia by the Perna Engineering Contracting Company, to insure the payment of laborers and materialmen, employed by a contractor, for work done under a contract with the City of Philadelphia. The real plaintiff is a partnership, to whose use the suit was brought in the name of the City, the obligee in the bond, and the defendants are the Contracting Company and the Fidelity Casualty Company of New York, the surety in the bond. The case was tried upon an agreed state of facts, and, for formal purposes, a verdict was rendered, by direction of the court, in favor of the plaintiff and against the surety. Thereafter, the surety company moved for judgment non obstante veredicto, which was granted.
The contract was for the construction of a concrete sewer in the City of Philadelphia. The use-plaintiff had furnished to the contractor certain materials, consisting of lumber, used for forms, sheathing and shoring in connection with the construction of the sewer. It was agreed that none of the lumber so furnished remained in the completed structure as a component part thereof; that none was designed so to remain therein; and that, by reason of the use of it, it was "used up and destroyed in and about the prosecution or performance of said work, and became waste and valueless." The condition of the bond provided that, if the principal obligor "shall well and promptly pay ...... any partnership ...... all sums of money which may be due for labor performed or materials supplied and furnished, in and about the performance of the work covered by the above-mentioned contract, then this obligation to be null and void; otherwise to be and remain in full force and effect."
From these facts, it will be seen that the single question of law involved in the case is whether or not the condition of the bond, just quoted, renders the defendant surety company liable for lumber which was used as forms, sheathing, c., in the prosecution of the work, but was not incorporated in the completed structure, and formed no part thereof. The case, in our judgment, is controlled by the cases of Philadelphia v. Malone, 214 Pa. 90, and Com. v. Empire State Surety Company, 50 Pa. Super. 404. In the former of these cases, the condition of the bond was that the contractor would pay "all sums of money which may be due for labor and materials furnished and supplied, or performed in and about the said work," and it was held that coal, furnished to the contractor for use upon the job, did not come within the terms of the bond. In the latter case, the statute, under which the bond was given, provided that it must be conditioned to pay "every person furnishing material or performing labor in and about the construction of said highway." In interpreting this statute, and the bond given thereunder, the court said: "The settled rule seems to be that the words `material furnished' for any structure, work or improvement, in contracts of this kind, apply only to such materials as enter into and become component parts of the structure, work or improvements contemplated and do not include machinery, tools, fuel, oils or appliances used for the purpose of facilitating the work, nor does it include houses or stables used for such purpose, nor loss of time nor any other expenditure incurred for things which do not remain as a component part of the finished whole: Moyer v. Pennsylvania Slate Company, 71 Pa. 293; Allen v. Elwert, 29 Or. 428 ( 44 Pac. Rep. 823), and other cases cited under the head of "materials" in 5 Words and Phrases Judicially Defined, 4409 et seq." See also Commonwealth v. National Surety Company, 253 Pa. 5; Philadelphia v. Jackson and the F. C. Company, 280 Pa. 319. It was for this reason that the motion for judgment non obstante veredicto was granted.
The court directed a verdict in favor of the use plaintiff in the sum of $901.29. Subsequently, on motion, judgment non obstante veredicto was entered in favor of defendant. The use plaintiff appealed.
Error assigned, among others, was the judgment of the court.
Samuel I. Sacks, of Sacks and Piwosky, for appellant. — The lumber used was material furnished in accordance with the terms of the contract: Phila. v. McLinden, 205 Pa. 172; Phila. v. Neill, 206 Pa. 333; Bowditch v. Gourley, 24 Pa. Super. 342; 3 Words and Phrases (2nd Series) 325; U.S. to use Lyman Coal Co. v. U.S.F. G. Co., 82 Vt. 94, 71 A. 1106, 1107; 5 Words and Phrases Judicially Defined 4409; Phila. to use v. Jackson and the Fidelity Casualty Co. of N.Y., 280 Pa. 319; Empire State Surety Co. v. Des Moines, 152 Iowa 531; 131 N.W. 870; 152 Iowa 552, 132 N.W. 827; Illinois Surety Co. v. John Davis Co., 244 U.S. 376; U.S. to use of Boyer v. Quarry Co., 272 Fed. 698; Shannon v. Abrams, 98 Kan. 26; Multnomah v. U.S.F. G. Co., 87 Ore. 198; Smith v. Oosting, 203 N.W. 131 (1925).
William G. Wright, and with him Robert P.F. Maxwell and George F. Blewett, for appellees. — The material furnished was not designed to enter into or form a component part of the completed structure, and, therefore, was not within the condition of the bond: Phila. v. Jackson Co., Inc., 280 Pa. 319; Moyer v. Penna. Slate Co., 71 Pa. 293; Phila. v. Malone, 214 Pa. 90; Commonwealth v. National Surety Co., 253 Pa. 5; Robertson v. Globe Indemnity Co., 77 Pa. Super. 422.
Argued October 17, 1928.
The judgment is affirmed on the opinion of Judge GORDON.