Macey, Henderson & Co. v. Heger

45 A. 675, 195 Pa. 125, 1900 Pa. LEXIS 595

• Court: Supreme Court of Pennsylvania
• Decided: March 12, 1900
• Docket: Appeal, No. 381
• Status: Published

Opinion

Opinion by

Mr. Justice Fell,

The affidavit of defense filed in this case was clearly sufficient to prevent judgment. The action was on a bond of indemnity conditioned for the faithful performance by one of the defendants, T. A. Heger, of Ms contract for the excavating, grading and concrete work necessary in the building of a storehouse.

The substance of the material averments of the affidavit is that the defendant was a subcontractor for work to be done by the plaintiff for the United States government, and that at the time of entering into the contract he was told by the president of the plaintiff company, which had the contract for the whole work, that the specifications could not then be shown him; that the president stated to him the amount of excavation and concrete work required by the specifications, and assured Mm that his statement was correct and would be verified by the specifications; that fully believing the representations made, and relying on them, he signed the agreement and began the work; that upon discovering that the statement made to him was incorrect and untrue, and that a much greater amount of work would be required, he requested a reformation of the contract, and upon the refusal of the plaintiff, he quit work.

The facts averred, if established by proof, would be a complete defense in an action by the plaintiff to recover damages for a breach of the contract by the defendant, and it follows that they are equally effective in an action on a bond given to secure the performance of the contract.

The judgment is affirmed.