Philadelphia v. Malone

Opinion by Mr. Justice Mestrezat, In the elaborate opinion directing judgment to be entered for the defendants on the point reserved, the learned trial judge has cited and commented on nearly all of the numerous cases of the appellate courts of this state and of the federal courts bearing on the single question raised by this record, and has correctly held that the use plaintiff was not entitled to recover on the contractor’s bond for the coal which he furnished for generating steam to run the steam shovel and the locomotive used in excavating and removing dirt in constructing the reservoir. The very full discussion of the question and review of the pertinent decisions on the subject by the court below render an extended discussion here unnecessary. The agreement between the city and the contractors required the latter to furnish all the materials and perform all the labor necessary in constructing the reservoir in strict and exact accordance with the proposal and specifications attached to and made part of the contract. The bond on which this suit was brought was conditioned that the contractors “ shall and will promptly pay .... all sums of money which may be due for [97] labor and materials furnished and supplied, or performed in and about the said work.” The contractor is required to furnish the labor and materials for the work, and the bond is taken for the protection of the city and for the security of the parties from whom he or his subcontractor obtains such labor and materials. This being the purpose and extent of the obligation, it follows that the surety’s liability can arise on the bond for only such labor and materials as the contractors agreed to furnish in excavating and constructing the reservoir, or, in the language of the bond, “ in and about the said work.” Unless a claimant can show that the labor he performed or the materials he furnished are such as the contractors obligated themselves to -furnish the city, he cannot compel payment of his claim by suit against the surety on the bond. In ascertaining what labor and what materials are covered by the bond and for which the surety is responsible, resort must, necessarily, be had to the contract between the city and the contractors. Turning to the agreement, we see that both the labor and materials which the contractors obligated themselves to furnish are specifically set out and named in the proposal and specifications which the parties made part of their contract. In the agreement it is expressly provided that the labor and materials which shall be furnished shall be “ in strict and exact accordance with a certain proposal and specifications attached thereto and made part thereof.” An inspection of the proposal and specifications discloses nothing whatever which can be construed to include coal furnished for running the steam shovel or locomotive. The materials to be furnished are set out in detail. As said by the trial judge, dredging and hauling materials were included in the contract, but the claim presented here by the use plaintiff is not for dredging or hauling, but for the supply of a material which, being burned, gave heat to make steam from water and thereby propel machines which did the dredging and hauling. The shovel and the locomotive were the means or appliances by which the work of excavating was done and the fuel necessary to operate the machines can not, by the application of any fair rules of interpretation, be held to be “ materials required in constructing the reservoir.” It did not enter into or become a part of the visible work which was directed to be done and which when it was completed was to be the property of the city. [98] If there can be a recovery here against the surety, there is no certainty as to the extent of a surety’s liability on bonds of this character. The contract which is supposed to define and limit his liability will not avail him. If the price or value of the “ labor and materials ” specifically set out in the contract is not the extent of liability on bonds under the city ordinance, a responsible party will hesitate to become surety on such bonds and thereby expose himself to the payment of demands which he could not anticipate being covered by his obligation. As' suggested in the opinion of the court below, “ to hold with the plaintiff in this case is to require us to extend the bond to cover practically everything purchased by every subcontractor on the work. If coal can be recovered for, then 'of course oil, waste, repairs, or tools used in running the derrick and locomotive or about the cars, or repairing them, would have to be recovered for, and, going a step further, light furnished if the work was prosecuted at night. If coal for an engine can be recovered for, why not feed for horses, a farrier’s bill or the bill of a veterinarian ? The test, it seems to us, is that upon which the federal courts have rested their decisions, the materials or labor.must be such as the contract covers.” The assignments of error are overruled and the judgment of the court below is affirmed.