Folz v. Amweg , 191 Pa. 157 ( 1899 )

Opinion by

Mb,. Justice Gbeen,

The bond in suit was not a bond for the 'mere payment of money. The obligation of the Merchants’ Trust Company was not an obligation to paj' to the plaintiff the $20,000 of money in the event that Amweg the principal did not pay it. On the contrary, the express terms of the condition of the obligation were that “ if the above-named Frederick J. Amweg, his heirs, executors, administrators, and assigns shall, as soon as he shall receive from the board of public education of the city of Philadelphia the sum of $37,807.42, being the second payment to be made by the said board of public education to him on account of the contract entered into between the said Frederick J. Amweg and the board of public education for the building of the annex of the boys’ high school of the city of Philadelphia, dated the sixth day of March, pay to the said Leon H. Folz the sum of $20,000 out of the above-named sum of $37,807.42, then this obligation to be void or else to be and remain in full force and virtue.” It will be seen at once that in order to convict the trust company of a default in the terms of this obligation it would be necessary to show that Amweg had received the sum of $37,807.42 from the board of public education as the second payment due to Amweg on his contract with the board for the construction of the annex of the boys’ high school, and had failed to pay the $20,000 to Folz. In that state of facts the condition of the bond would be broken and the Merchants’.Trust Company would be liable for the breach. But, if that condition was not broken, according to its own terms, of course, the trust company would not be liable. On the trial it was contended on behalf of the defendant that the defendant trust company was not liable, because in point of fact Amweg never earned and never received the payment of $37,807.42, out of which only, the payment of the $20,000 was to be made. It was proved without contradiction that Amweg had defaulted on his building contract, and had ceased to carry on the work before the payment of $37,807.42 was earned. It was further proved that, after notice to the surety of Amweg on his building contract, “ The Tradesmen’s Trust and Saving Fund Company,” given by the board of public education, the surety company undertook to finish the building according to the terms of the original contract, and made an agreement with the board to that effect. The surety company thereupon proceeded with the work and finished the building, providing all the funds necessary for. that purpose from their own resources. The clause in the original contract which authorized the board of education to act was in these words, “ In case the said Amweg shall abandon or refuse to complete the work within contracted for, the said committee on property shall have the right to cause the same to be completed according to the within contract, on the account, and at the expense, of the said Amweg, and any money which may be due or unpaid on the within contract of the said Amweg'shall in that case become the property of the city of Philadelphia.” On June 9, 1896, the committee on property made a report to the board: “ Whereas Frederick J. Amweg, contractor for the erection of the Richmond and Ontario street school building and of the annex to the boys’ high school, has failed to fulfil his contracts for the erection of said buildings, whereby he has forfeited all rights under said contracts; and'whereas the Tradesmen’s Trust and Saving Fund Company, sureties for said Amweg, have offered and undertaken on their own behalf to fulfil said contracts, and the board of public education has accepted said trust company as substitutes for said Amweg in performance of said contracts, and has agreed, if said trust company properly completes said buildings in accordance with the provisions of said contracts, to pay them the amounts agreed upon in said contracts to be paid for the erection of said buildings ; Now therefore resolved that by reason of said Amweg’s forfeiture of all rights under said contracts the secretary of the board of public education be instructed to draw no warrants for work in the erection of the said buildings to or in favor of the said Frederick J. Amweg.”

After the completion of the building by the surety company a warrant was drawn by the board of public education in favor of “ F. J. Amweg or bearer,” for the sum of 137,807.42. A check to pay this warrant was drawn by the city controller dated July 3, 1896, to the order of his assistant, J. Hampton Moore, who indorsed it “ Pay to the order of the Tradesmen’s Trust and Saving Fund Company.” The warrant and the check were handed to the trust company and that company received the money. No part of it was ever paid to Amweg, nor was any of it due to him. The circumstance that the warrant was made payable to Amweg or bearer is of no account whatever. As the contract was made in his name there was sufficient reason for drawing the warrant in his name to identify the payment with the contract. In point of fact Amweg had nothing to do with the warrant. He never received it, and his indorsement of it was not needed and was not made, because it was payable to bearer. He never received the warrant or the check, and he had no right to receive either. It follows that the condition of the bond in suit was never broken and hence there could be no recovery on it by the obligee in the bond. It was abundantly proved by the oral testimony that Amweg defaulted on his contract and quit the work; that the surety company was duly called upon by tbe proper authorities to finish the contract, and that they thereupon did complete the work, furnishing the money therefor from their own resources. It was also fully proved that in doing this work they lost money and did not receive enough to reimburse them. There was not the least evidence of collusion between Amweg and the surety company, and there was nothing on the record to impugn the perfect integrity of the transaction. The charge of the learned judge of the court below was a careful and perfectly correct presentation of the whole case, and we see no error in any part of it. The assignments of error are all dismissed.

Judgment affirmed.