Central Trust & Savings Co. v. Henry Kraan Furniture Co. , 65 Pa. Super. 339 ( 1916 )

Opinion by

Kephart, J.,

To supply the deficiencies in the plaintiff’s statement as pointed out by this court: 57 Pa. Superior Ct. 221, an amended statement was filed. It exhibited the policies of insurance and averred that the premises uncompleted were not worth the amount of the second mortgages and that the mortgages insured depreciated in value by reason of such noncompletion, each in an amount equal to the cost of completing the work according to the contract. Keeping in mind that the bond here sued on was to indemnify the plaintiff against loss under the policies, the plaintiff was presently answerable under its policies when it ascertained that it was subject to a legal liability by reason of the depreciation in value of the property covered by these mortgages, which depreciation was caused by the failure of the contractor, the principal, to complete the contract and such depreciation or liability was measured by a sum sufficient to complete the buildings according to the contract. It was not necessary in order to enforce recoupment from the defendant that the plaintiff should await a sale of either the premises in their uncompleted condition or the mortgages as depreciated in value in order to ascertain the amount of the loss. When the plaintiff’s legal liability was thus established this loss was an ascertainable sum that might have been paid directly to the mortgagees by virtue of the policies or it might have been and more properly was expended on the subject-matter of the insurance by bringing the property from the uncompleted condition in which it was left by the contractor up to the point of completion required by the contract and the terms of the insurance policy. It was for the faithful performance of the contractor’s acts that this surety obligated himself. When the money was thus expended, it became none the less an actual loss sustained by the plaintiff on the policies issued and was embraced within the intent and purpose of the bond. No better rule to fix the measure of the plaintiff’s loss Avas offered, suggested or known of. It was limited to actual loss in the value of the mortgages not exceeding the amount of the insurance measured by the actual cost necessary to place the property in the condition that it was required to be placed in under the contract. See The German-American Title & Trust Co. v. The Citizens Trust & Surety Co., 190 Pa. 247. We think all the policies attached in the plaintiff’s statement were embraced within the terms of the bond and from what we have already said, it was not necessary for the plaintiff to await enforcement of liability according to the conditions in these policies. The entry of judgment on the answer in the nature of a demurrer after joinder filed was proper. The court did not commit error in refusing to enter judgment for the defendant when the remittitur was returned with a procedendo. The trial court was within its undoubted right in allowing time to file an amended statement: Plunkett v. Hamnett, 51 Pa. Superior Ct. 98. There was no joinder in the demurrer when the case was here before. That difficulty being now eliminated, the judgment of the court below on the demurrer, is affirmed.