King v. Security Co.
King v. Security Co.
Opinion of the Court
Opinion by
This is an appeal from a judgment entered for want
As to the application for change of venue, its foundation disappears in view of the findings of fact in relation thereto by the trial judge.
This leaves for consideration only the action of the court in entering judgment for want of a sufficient affidavit of defense. The action is assumpsit, and the claim is based upon a breach of contract. In the statement of claim it is averred that the plaintiff entered into a contract with certain persons by which they were to furnish labor and materials to construct a reservoir. That the defendant company became surety upon the bond of the contractors for the faithful performance of the work. That the work was not performed in accordance with the contract, and plaintiff after notice to the contractors to complete the work in accordance with their agreement, and their refusal to do so, had the work done at the lowest price obtainable, which was ten thousand dollars, which sum was paid by plaintiff. Thereupon the condition of the bond was broken, and the defendant as surety thereon became liable for the full amount of the
Measured by these well established rules, it is clear that the affidavit in this case discloses no legal defense whatever. Our judgment as to its insufficiency is in entire agreement with that of the learned judge of the court below. The judgment was rightly entered, and is now affirmed.
Reference
- Full Case Name
- King v. The Security Company, of Pottstown, Pa.
- Cited By
- 12 cases
- Status
- Published
- Syllabus
- Practice, C. P. — Service of process — Surety companies — Act of March 22,1911, P. L. 23 — Statutes—Retroactive statutes — Assumpsit — Affidavit of defense — Insufficient averments. 1. In an action of assumpsit to recover from a surety company the amount of a bond given by defendant to secure the faithful performance by a third party of a contract to furnish labor and materials, where the home office of defendant was located in a different county from the county in which the action was brought, and defendant was served under the provisions of the Act of March 22, 1911, P. L. 23, providing that in such cases the sheriff of defendant’s county may be deputized to serve defendant, the court did not err in refusing to set aside the service although defendant had given the bond before the act was passed. 2. There is no vested right in any course of procedure; a party has only the right of prosecution or defense in the manner prescribed for the time being by or for the court in which he sues. 3. Where the affidavit of defense in such action contained nothing but a general denial that the contractors had broken their contract so as to render defendant liable, and stated no facts which constituted an adequate defense, judgment was properly entered for plaintiff for want of a sufficient affidavit of defense.