Philadelphia, to Use v. Stange , 306 Pa. 178 ( 1931 )

Argued December 3, 1931. This action in assumpsit is to recover on a bond given by defendants to the City of Philadelphia to protect laborers and materialmen under a contract with defendant city. The pertinent facts follow: On June 22, 1925, the Stange Construction Company entered into a written contract with the City of Philadelphia to grade Pattison Avenue from Tenth Street to Eleventh Street, Tenth Street from Bigler Street to Pattison Avenue and Eleventh Street from Pattison Avenue to Terminal Avenue. On the same day, the Stange Construction Company, as principal contractor, together with the Southern Surety Company, as surety, delivered their joint bond to the municipality in the amount of $38,400 to secure payment of labor and material claims in accordance with the provisions of an ordinance of council entitled: "An ordinance for the protection of persons, other than those contracting directly with the city, who perform labor and furnish materials for the erection, construction, addition, removal, alteration, or repair of buildings, structures or other work and improvements for public use, including the work of setting up and equipping the same for the City of Philadelphia." Section 2 of the ordinance provides, among other things, that "Any person so performing labor or furnishing and supplying materials in the prosecution of the work covered by said contract and not receiving payment therefor, shall have a right of action and shall be authorized to bring suit in the name of the City of Philadelphia on said bond, for his use and benefit, against said contractor and against the surety on said bond." The work to be done under this contract was in connection with grading land, a part of the preparation for the Sesquicentennial Exposition. The Stange Construction Company engaged the Hastings Dump Truck Company as subcontractors to grade a portion of the area covered by the above contract, and the subcontractor in turn orally engaged Dourte Irelan, Inc., to haul fill to the area which they had agreed to grade for the Stange Construction Company. Dourte Irelan, Inc., was paid for the work done by it to the end of August, 1925, but not for work done between September 1st and September 26, 1925. It is for the recovery of this item, amounting to $13,764.35, with interest from September 26, 1925, that the present action was instituted. On September 26, 1925, the Hastings Company abandoned the job and thereafter Dourte Irelan, Inc., continued to work for the Stange Construction Company direct. Dourte Irelan, Inc., assigned its claim against defendants on the bond filed with the city to the White Company, which assignee appears in this suit as the second or ultimate use-plaintiff. The pleadings consisted of a statement of claim and separate but identical affidavits of defense filed by the Stange Construction Company and the Southern Surety Company defendants. Witnesses were called for both sides and there appears considerable conflict in the testimony. The jury returned a verdict for plaintiffs for $18,283.55, which represented the claim with interest. The defendants filed motions for a new trial and judgment n. o. v., both of which were refused. Final judgment being entered on the verdict, defendants appealed.

Appellants present four contentions in resisting the judgment appealed from, each of which we shall mention in the discussion which follows.

As above stated, Dourte Irelan furnished trucks and hauled earth to the scene of the grading. Appellants' contention that "merely furnishing trucks to haul dirt to the area covered by the bond [was] not such a claim for labor or materials as was intended to be secured by the bond in suit," is untenable under the facts here presented. The scope of the bond is to be determined, in this character of case, in the light of the purpose or contemplation of the principal contract let: Phila. v. Jackson Co., Inc., 280 Pa. 319, 324. The contract contemplated grading definite city streets where a fill was necessary. Without the hauling and putting in place of the material in question, there could have been no grading. The ordinance under which the bond was given recognized the necessity for such incidents as the hauling of fill when it included in its protective clause the words, "or other work and improvements for public use." Section 2 of the ordinance gave a right of action to those supplying labor and materials "in the prosecution of the work covered by said contract, and not receiving payment therefor." The hauling of fill was plainly "other work . . . . . . for public use," and, in view of the nature of the improvement sought to be accomplished by the contract, there is no reason to hold that Dourte Irelan's contribution was outside the contemplated purview of the contract. The labor performed by the Dourte firm was indispensable to the contemplated performance of appellants' contract with the city, and, as in Phila. v. Tradesmen's T. Co., 38 Pa. Super. 286,290, where cartage was considered "labor furnished," so here, the hauling was clearly labor performed within the meaning of the bond.

The contention that the White Company, the assignee of Dourte Irelan, is without right to maintain the present proceeding is ill conceived as they are not the legal plaintiffs. Under the above quoted part of section 2 of the ordinance, which was incorporated in the bond delivered by defendants to the city, any laborer or materialman who was not paid was given the right to sue defendants on the bond in the name of the city. When Dourte Irelan were not paid for the hauling done by them between September 1st and 26th, their right of action on the bond accrued. They became entitled to sue as use-plaintiffs, in the name of the city, the legal plaintiff. The city is to be regarded as trustee for those who might become beneficially interested, and is the nominal plaintiff only: Phila., to use, v. McLinden, 205 Pa. 172, 176; see also Blue Star Navigation Co. v. Emmons Corp., 276 Pa. 352, 356; Greene Co. v. Southern Surety Co., 292 Pa. 304, 317. In the present case the city is properly made the legal plaintiff and the firm of Dourte Irelan properly appears as use-plaintiff. The fact that the White Company is joined as a second or ultimate use-plaintiff, being assignee of Dourte Irelan, Inc., in no way affects the liability of defendants on their bond. The right to maintain this action in the name of a legal plaintiff is the controlling consideration. Dourte Irelan clearly fall within the protected class, and accordingly have a right of suit: Greene Co. v. Southern Surety Co., supra. This right being determined, it is a matter of indifference whether the judgment, if sustained, goes into the pocket of the use-plaintiff or one to whom he chooses to assign his interest. Conceding the right of suit, the assignment to and joinder of the assignee does not prejudicially affect defendants, much less vitiate the right of remedy by suit: Title Guaranty Trust Co. v. Crane, 219 U.S. 24; Southern Surety Co. v. Peoples St. Bank, 47 F.2d 93.

Appellants complain of several matters in the court's charge, the most important being that, in reviewing the evidence as to the disputed scale of prices to be paid to the Dourte firm per load for hauling, the trial judge referred to plaintiffs' scale without mentioning that contended for by defendants. The court carefully explained that the figures he repeated were plaintiffs' and were disputed by defendants. Taking the charge as a whole, the court's statement in this regard could not have misled the jury, as it clearly appeared he was, at the time, merely reciting plaintiffs' claims. However, defendants had ample opportunity to have the matter settled to their satisfaction, as the trial judge expressly requested counsel to advise him whether anything had been left unsaid that should have been said and defendants not only failed to mention this matter but took only a general exception. In an analogous situation, where a similar complaint was for the first time raised on appeal, we said "defendant is in no position to take advantage of what was not said by the trial judge (McCaffrey v. Schwartz, 285 Pa. 561, 568; Davis v. Cauffiel, 287 Pa. 420), especially as only a general exception was taken to the charge. Except as to matters basic and fundamental, a trial court will not be reversed for failure to instruct the jury on a question not called to its attention: Loughrey v. P. R. R. Co., 284 Pa. 267; Gillett et ux. v. Yellow Cab Co., [87 Pa. Super. 365] "; Schlossstein et ux. v. Bernstein, 293 Pa. 245, 252-3. Moreover, appellants have presented no adequate assignment of error on this point. There is no worth in appellants' further contention that the court failed to make evident to the jury that there was an issue as to the correct schedule of prices to be paid for the hauling and another issue regarding where the fill was delivered — to this location or to another in the vicinity — before them for decision. The charge treated of both issues. If defendants wished additional instructions it was their duty to present them when the opportunity was given. This they failed to do. Plaintiffs' account books, made up from temporary tickets or cartage memoranda given to the truck drivers on delivering each load of earth, and turned in by them at the end of each day, offered as proof of the items of plaintiffs' claim were properly admitted as books of original entry under the law as enunciated in Phila. v. Tradesmen's T. Co., supra. We deem unnecessary discussion of the other numerous objections made to the court's charge, as all are destined to fail either because they refer to inaccuracies of so trivial a nature as to be harmless, or because, as stated in the Schlossstein Case, they cannot be raised here on a general exception.

Although it is true that considerable conflict existed in the testimony, we are not convinced that the verdict was speculative. A reading of the entire record shows there was sufficient evidence before the jury on which to sustain their verdict. They had before them the plaintiffs' witnesses and books of original entry, and the evidence produced from these two sources disclosed the dates upon which the respective loads were hauled, the number of them, their points of origin, the unit prices per load and the total charges per day.

The judgment is affirmed; costs to be paid by appellants.