LANCASTER v. GEORGE, 315 Pa. 232 (1934)

172 A. 686

Lancaster, to use, Appellant, v. George et al.

Supreme Court of Pennsylvania.April 30, 1934.
May 21, 1934.

Principal and surety — Contractors’ bonds — Construction — Claim for rental of machine — Labor and materials — Act of June 23, 1931, P. L. 932.

A claim for rental of a machine is not a claim for material or labor within the scope of a bond given by a contractor under the Act of June 23, 1931, P. L. 932, conditioned upon payment by the contractor for material furnished and labor supplied or performed in the prosecution of the work.

Argued April 30, 1934.

Before SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

Page 233

Appeal, No. 86, Jan. T., 1934, by plaintiff, from judgment of C. P. Lancaster Co., Nov. T., 1932, No. 70, in case of City of Lancaster, to use, v. Frank George et al. Judgment affirmed.

Assumpsit on bond. Before SCHAEFFER, J.

The opinion of the Supreme Court states the facts.

Affidavit of defense in lieu of demurrer sustained and judgment entered for defendants. Use-plaintiff appealed.

Error assigned, inter alia, was sustaining of affidavit of defense, quoting record.

Jacques H. Geisenberger, of Geisenberger Geisenberger, for appellant.

Charles L. Miller, for appellee, was not heard.

PER CURIAM, May 21, 1934:

The use-plaintiff’s claim against a surety bond was based on the rent due for a ditcher scoop leased to Frank George, who had a contract to complete sewer improvements in Lancaster. The bond insured the faithful and prompt payment of labor and material: Act of June 23, 1931, P. L. 932, section 1905. The part of the bond in question being, “. . . . . . for material furnished and labor supplied or performed in the prosecution of the work . . . . . . in aid of or auxiliary to the prosecution of the said work, whether or not the said material or labor enter into and become component parts of the work or improvement contemplated by the said contract or any modification thereof. . . . . .” The bond in substance follows the act.

Notwithstanding this comprehensive language, the subject of liability is labor and materials. It was held some years ago the word “material” did not include machinery, tools, or appliances used for the purpose of facilitating the work: Com. v. Nat. Surety Co., 253 Pa. 5,

Page 234

13; Phila. v. Jackson Co., Inc., 280 Pa. 319. This determination of the interpretation of “material,” though under a different situation, embodied its full meaning as applied to the statute and bond in question.

Rental is not a labor claim. This was decided in Com., to use of Read Corp., v. Stryker, 109 Pa. Super. 137, where the claim and condition of the bond is almost identical with the one now under consideration, and the wording of the acts similar. With this conclusion we agree.

As a matter of policy, it is necessary to confine the word “labor” in this connection to its primary meaning, and not to permit it to be so broadened as to carry the liability of a surety under these bonds to indefinite and uncontemplated lengths. Phila. v. Stange, 306 Pa. 178, as may be readily noted, does not apply.

Judgment affirmed.