Philadelphia v. Neill & Lincoln Savings & Trust Co. ( 1905 )

Opinion by

Mr. Justice Brown,

The first of the seven reasons given by counsel for appellant why this judgment should be reversed is that the bricks were sold to the contractor on his personal responsibility, and not on reliance upon his contract with the city and the bond given by him in pursuance of it. This assumes a fact not found by tbe jury, and which, under the evidence, they were justified in not finding. There was testimony that Neill, the contractor, called at the office of the appellees and asked for a price on vitrified paving brick, which he wished to use at a later date in the highway department; that the price was given him and he became the successful bidder for paving a number of streets, among them Howarth street; that when he subsequently ordered the bricks he named the streets on which they were to be used, Howarth being one of them, and to this street the bricks were sent and used on it. The contractor was ask^d: “ Q. With the brick you bought from the McAvoy Brick Company you paved Howarth street from Willow to Frankford avenue?” and the answer was, “Yes, sir.” The condition of the appellant’s bond was that A. M. Neill, the contractor, would “promptly pay or cause to be paid to any and all persons, any and all sum or sums of money which may be due for labor and materials furnished and supplied or performed in and about ” the paving of Howarth street; and, under the testimony produced by the appellees, they can turn to tbe bond for protection.

Objection is next made that “ there is a fatal variance between the allegata and probata ”; and we are asked to say that the suit is not on the bond. We can hardly understand this, for the suit is plainly on it, and it was offered in evidence in proof of the appellant’s liability to the appellees. In setting forth their cause of action on the bond, the plaintiffs properly stated the conditions under which it had been given, and then averred the breach of it as the ground of their complaint. The statement is a careful piece of pleading and its material allegations were supported by proper proofs.

By the seventeenth assignment we are asked to say that the bond is void, because it is broader than .the form provided by the ordinance—so broad that it includes sub-subcontractors, and it is argued (1), that if the ordinance protects sub-subcontractors, it is void as against public policy, and (2), if the ordinance does not protect sub-subcontractors, but the bond does, then the latter is wholly void. These questions are not now before us. Neill was a contractor and the unpaid materials were furnished directly to him by the appellees. The ordinance and bond are for just such a case. Whether they protect sub-subcontractors we can only decide when that question arises. We pass upon nothing that is not before us.

Whether the notes and checks given by Neill to the appellees were taken by them as payment, in discharge of the surety on the bond, was a question of fact for the jury. They were instructed that, to make a note payment absolute, there must be an express agreement by the creditor to receive it as such, and that the burden of proving this is upon the debtor. This was correct: Philadelphia v. Stewart, 195 Pa. 309. The president and bookkeeper of the company both testified that the notes had not been accepted as payment, and Neill, the debtor, upon whom was the burden of showing that they had been so accepted, does not testify that they or the cheeks were so given and received.

In the judgment of the trial judge, the accounts of the appellees with Neill were not of such a complicated nature as to call for explanation by an expert accountant. Whether a contention is such as calls for expert testimony is largely in the discretion of the trial judge: Ryder v. Jacobs, 182 Pa. 624; and, in the present case, it is manifest that this discretion was wisely exercised.

The evident purpose of the trial judge in reading the plaintiffs’ statement and the defendant’s affidavit of defense to the jury was to let them know what the issue was. In Reese v. Hershey, 163 Pa. 253, relied on by appellant in support of the third and fourth assignments, the suit was for personal injuries and the court below was criticised for reading the averment of the unliquidated damages claimed, because such reading tended “ to get figures and amounts into the jury’s mind without evidence.” In the present case there was no dispute as to the amount of plaintiffs’ claim for the material furnished. The defense was that they had been paid, and, if not, that they were not protected by the bond. No conceivable harm was done the appellant in reading to the jury what the plaintiffs claimed and what the defendant said in reply. After all the testimony had been heard by the jury they simply had reimpressed upon them by the reading of the papers the issues between the parties. It was the court’s duty to do this in its charge, and, in doing so in the manner complained of, nothing in this dispute got into the jury’s mind that ought not to have reached it.

That portion of the judge’s charge in which he referred to the fact that these plaintiffs had recovered from the same defendants in an action on a bond given to the city of Philadelphia under the ordinance of March 30, 1896, must be read in connection with what preceded it. He was simply instructing the jury as to the law of. the case, and they were told that there could be a recovery on such a bond as had been given in this case, an illustration being the recovery in another suit which had been sustained. But they were further told that these plaintiffs could not recover unless they found from the whole evidence that the bricks for Howarth street had been furnished by them and the same had not been paid for. Another reason why the appellant should not complain of the reference to a recovery against it in another suit, is the fact that it developed this in its own cross-examination of one of appellees’ witnesses. This disposes of all the assignments. They are overruled and the judgment is affirmed.