For the appellant, Edward A. Markley (Collins & Corbin).
For the respondent, Kimmel & Kimmel.
The present action was brought upon a surety bond. The complaint alleged that the plaintiff, a trucking concern, had performed work and labor in carrying forward a contract which the Butler Reisdorff Company had with a state board. The defendant was surety on a bond to secure the faithful performance of the contract. The bond was expressly for the benefit of all subcontractors, laborers and materialmen performing labor or furnishing material used in carrying forward the contract.
The answer of the defendant denied that the work sued for was performed in carrying forward the work under the contract. The Supreme Court struck the answer as sham. The sufficiency of the proofs upon which the action of that court was predicated is challenged.
It appears that the work of removing the tools, planks, equipment and spare materials of the Butler Reisdorff Company commenced on January 4th, 1929, and continued through a part of that month. The work on the building was not completed on April 15th, 1929, when the Butler Reisdorff Company defaulted. The work was then taken over and completed by the state board.
The proofs totally fail to prove that plaintiff's trucking work was done in furtherance of the contract. The removal of the equipment and spare material was before default in the performance of the contract, and there is no evidence that the removal was done in carrying forward, performing or completing the contract.
The order striking the answer as sham was error, and the judgment below is reversed.
For reversal -- THE CHIEF JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, ...