Appeal of Huckestein , 3 Pennyp. 55 ( 1882 )

the opinion of the Court was delivered by

Trunkey, J.

Jolly covenanted with Huckestein & Go. that he would deliver all the new sandstone required for the construction of a new pier for the Union Bridge before September 20, 1881. Huckestein & Co. gave a judgment-bond, with surety, to secure payment of the price, and the judgment was confessed on said bond. The contract and bond are unimpeached, neither party alleging fraud or mistake therein. This application for opening the judgment does not rest upon an attempt to overcome or vary a written contract by oral testimony.

The appellants do not undertake that burden, and the weight of the evidence touching the disputed points need not be so strong in their favor to move the Court to open the judgment, as if the contract in writing was sought to be overthrown. That the party has a judgment as collateral security for what may be due upon a contract is not reason for refusing to open the judgment, when there is a proper case for submission to a jury to determine how much, if anything, is due on that contract.

Here the allegations and testimony have respect to the manner of performance, and delay in performance, by the plaintiff in the judgment, of his contract. That there was considerable delay is agreed; and that by reason thereof Huckestein & Co. suffered loss is clearly proved.

It also appears that Huckestein & Co. failed to give the'Orders and specifications, so that the stone could have been delivered within the stipulated time. But, after the delivery had begun, the stone was not promptly furnished as required for the work. The parties differ as to the cause, each alleging it was the other’s fault. One also alleges that part of the stone furnished was unfit, and could not be used in the pier; the other, that the whole accorded with the specifications.

Numerous witnesses testified respecting the disputed points, and their testimony is conflicting. An examination of the testimony convinces us that the appellants are entitled to a trial by jury. It would answer no good end to now remark the testimony at length or express an opinion of its weight.

The order discharging the rule to show cause is reversed, and said rule is made absolute, and procedendo awarded.