Dunbar v. Fleisher , 137 Pa. 85 ( 1890 )

Opinion,

Mr. Justice Williams:

This case depends on the construction of the undertaking of Fleisher to become security for Jesse Harper and John Famous. Dunbar had contracted with the commissioners of Perry county to build a bridge across Sherman’s creek, and had sub-let the stone work to Harper and Famous. Their contract was in writing, and provided for payment to the contractors in advance of their work. Fifty dollars was to be paid at the date of the contract, and, on the completion of one third of the stone work, any balance due was to be paid in full. Fifty dollars was likewise to be paid in advance on the next third, and any balance due was to be paid when that third was completed. The whole price of the last third was to be advanced, if Harper and Famous should give “ security for the money for the balance of the work to be done; that is, after the two thirds is done.” The two thirds were built to the satisfaction of Dunbar, and paid for by him in accordance with the contract. As a means of advancing the remaining one third, he gave to Harper and Famous his order on the county commissioners for sixty-two dollars, which he assured them would be paid, and Fleisher became their security by a paper dated the 23d July, 1883, which recited the giving of the order for sixty-two dollars, the amount to become due at the completion of the bridge, and contained this undertaking: “I hereby become security for said Harper and Famous for the faithful performance of said mason work to said bridge, as per contract with said Dunbar.”

What now is the extent of Fleisher’s undertaking and consequent liability ? The plaintiff contends that he is liable generally for the performance of the entire contract by Harper and Famous, and seeks to recover in this case, not only for the last third of the work, but for the money paid for the two thirds, which had been settled for before the undertaking was entered into. But it should be borne in mind that the paper signed by Fleisher was given in pursuance of the contract between his principals and Dunbar, to which it expressly refers, and it should be read in the light which that contract throws upon it! Turning to ’ that instrument, we find that it contemplated no security to be given by either party, except in connection with the payment to be made for the last one third of the work. The provision relating to this subject is in these words: “ In case J. R. Dunbar shall give security for the payment of said last one third of work when the same is fully finished, then the said parties shall be paid when said work is finished, or else said parties of the first part can give security for the money for the balance of the work to be done ; that is, after the two thirds is done; and then said J. R. Dunbar shall in such case pay the balance for said work before the parties shall commence the same.” Dunbar had the right to retain the price of the last one third of the work in his own hands, by giving security that it should be paid when the work was done. If he did not do this, then the contractors could give security “for the money for the balance of the work to be done; that is, after the two thirds is done,” and call upon him to pay it to them in advance.

The same scrivener who prepared this agreement, and was its custodian, was applied to by the parties to prepare the necessary undertaking for a surety to sign, so that Harper and Famous would be entitled to call upon Dunbar for payment in advance for the last one third of the work. Dunbar undertook to pay the money in advance, and, as a means of payment, drew his order on the county commissioners for sixty-two dollars, which he assured them would be promptly paid. In consideration of such advance payment, Fleisher undertook that Harper and Famous should do the work for which they were so paid. This was the kind of security for which the original contract provided; it was what was in the minds of all the parties at the time, and it is the fair legal effect of what was done by them. If the money had been paid by the county, then Fleisher would have been liable for performance by his principals of the work which the money paid for, or for its return to Dunbar. But the whole arrangement failed. The county did not pay the money upon Dunbar’s order. Harper and Famous got no money therefor from Dunbar. The advance payment upon the last one third of the stone work was not made, and, presumably for that reason the work was not done. By the terms of their contract, they were not bound to do the work, unless the price of that one third was secured to them by Dunbar, or paid to them in advance on their giving security for it. Dunbar neither gave the security nor paid the money in advance, and the consideration for Fleisher’s undertaking wholly failed.

The court below committed no error in giving the binding instruction complained of, and the judgment is therefore

Affirmed.