RESOLUTIONS OF THE ERIE COUNTY BAR ASSOCIATION UPON THE DEATH OF T. A. LAMB.

It was with sincere grief that the members of the Bar learned of the sudden death of Theodore A. Lamb.

He was seventy-three years of age, and had long been one of the recognized and most respected leaders of the Bar. He was registered as a law student with Spencer and Marvin on July 21, 1869, and was admitted to the Bar on August 22, 1871. He was a member of a family prominent in Erie and Crawford Counties, and was a graduate of Allegheny College.

He won early recognition as a profound student and a painstaking practitioner. He held the office of City Solicitor of the City of Erie from 1877 to 1889, during which time he made a state-wide reputation as an authority on municipal law. He was frequently selected as arbitrator, or auditor, or master in important cases, and his decisions demonstrated his learning and fitness for judicial duties. He was the candidate of his party for judge in 1886, failing of election by but a few hundred votes on the minority ticket. In 1890 he became senior member of the widely known law firm of Lamb and Walling, which continued until Mr. Walling (now Justice Walling) went upon the bench. Mr. Lamb thereafter continued in active practice almost to the hour of his death.

He numbered among his clients many of the most important industries and foremost citizens of the community; but his services were as easily enlisted by the poor and lowly as by the rich and influential. His great learning and experience were always at the disposition of his brother lawyers in difficult cases. He was one of the most modest of men, almost embarrassing his associates by giving them the precedence to which they knew him to be better entitled; and he was almost indifferent to pecuniary compensation for the assistance he gave them. He was a trustee in many matters involving important interests and large amounts, and discharged his difficult duties with wisdom and scrupulous fidelity; and he died respected by the entire community and deeply mourned by his family and friends. His professional success was built upon the solid foundations of high character and hard work; and while his death is a great loss, his life was a great gain to the community and the Bar.

THEREFORE, BE IT RESOLVED, That we express to the public and to the Court our high appreciation of his life and work, and to his family our deepest sympathy in their bereavement; and that these resolutions be spread upon the records of the Court and a copy thereof given to his family.

SCHOENBEIN V. NATIONAL SURETY CO.

Affidavit of defense Act of May 14, 1915, P. L. 483-Specific denial required.

Bald denial of the averments of the several paragraphs of the statement of claim are insufficient, because Section 8 of the Act of the 14th of May, 1915, P. L. 483, provides, "it shall not be sufficient for the defendant in his affidavit of defense to deny generally. the allegations of the statement of claim, * *" he must make that denial so clear and specific that plaintiff may forthwith obtain judgment for. the amount as to which there is no real defense, and so that at the ensuing trial the court may know exactly what the issue is.

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School Districts Act of May 8, 1911-Right of Sub-Contractor to sue as use plaintiff.

Under the Act of May 8, 1911, School Districts of the Comomnwealth are vested as bodies corporate with all necessary powers to enable them to carry out the provisions of that act,. and a part of that act requires the directors to establish, equip, furnish and maintain schools. A School District is entitled to protect itself by exacting assurance from the contractor that he will pay his honest debts in doing the School District's work, and in case of the contractor's default, a sub-contractor has the right to sue upon the bond in the name of the School District for use of the sub-contractor. Rule for judgment for want of sufficient affidavit of defense, No. 30, November Term, 1919. C. P. Erie County.

Henry Baur for Plaintiff.

Brooks, English & Quinn for Defendant.

ROSSITER, P. J., February 18, 1920

This is a rule for judgment for want of sufficient affidavit of defense. Briefly stated the plaintiff's statement is to the effect that the National Surety Company became surety on a bond, conditioned upon the proper performance by the Dawson Construction Company of a contract entered into with the School District of the City of Erie, which bond inured, among others, to the benefit of the plaintiff; that the use plaintiff, a sub-contractor, has properly performed his work and that there is still $850.00 due and unpaid thereon and that the Dawson Construction Company has defaulted and refused to pay..

The defendant admits that it became surety for the Dawson Construction Company, but denies the balance of paragraph one of the plaintiff's statement which is to the effect that the bond inured to the benefit of all parties alike who supplied material, etc.; denies the second paragraph because not conversant with the facts alleged; denies the third paragraph; demands proof of the fourth paragraph because not informed of the facts alleged; and for further answer says that the use plaintiff has no legal right to maintain an action or to sue in the name of the School District of

Schoenbein v. National Surety Co.

the City of Erie for his use; that the bond so far as the use plaintiff is concerned is illegal, beyond the authority of the School Board to make and ultra vires and void. The eighth and ninth paragraphs of the affidavit of defense have been met by an amendment to the statement.

The contention of the defendant at the argument was not so much that the affidavit of defense was good as that the plaintiff's statement was bad and while the point was not raised and we are not now deciding it, still it seems to us, without examining the authorities, that a surety company is (or at least ought to be) estopped from denying the authority of those to whom it binds itself for a consideration to provide protection for sub-contractors or those doing work or furnishing material. If these sub-contractors and material men have earned their money they ought to be paid and if they are not paid, this court ought to assist them in getting their pay without too much regard for legal quibbles and technical niceties. If the bond was meant for anything at the time it was drawn and placed on file it was meant to inform those who sought subcontracts or furnished materials that they were to be protected by it, for it recites in so many words that it was to inure to the benefit of all those parties alike who supplied material for or performed labor on the work, whether by sub-contract or otherwise in proportion as their respective demands were to the amount of the bond. So the only point we ought to consider here is whether the defense set up in the affidavit is of such a substantive character as, if established, to bar a recovery.

The questions then considered seriatim are, First: Does the bond inure to the benefit of all parties, alike who supplied materials, etc.? The bond says so itself-recites that it is understood and agreed that it shall inure to the benefit of all parties alike who supply materials or perform labor on the work set forth in the contract whether by sub-contract or otherwise. The bond thus reciting that the defendant is liable and there being no reason why given in the affidavit of defense other than the bare statement that it is not, it follows, of course, that this paragraph of the affidavit is insufficient to prevent judgment. Second: The affidavit denies the second paragraph of plaintiff's statement because not conversant with the facts alleged. Clearly this is insufficient under all the decisions, but to quote one (Fulton Farmers' Association v. Bomberger, Appellant, 262, Pa., 43), "bald denial of the averments of the several paragraphs of the statement of claim are wholly insufficient because Section 8 of the Act of the 14th of May, 1915, P. L. 483, provides that "It shall not be sufficient for the defendant in his affidavit of defense to deny generally the allegations of the state

Schoenbein v. National Surety Co.

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ment of claim, * he must make that denial so clear and specific that plaintiff may forthwith obtain judgment for the amount as to which there is no real defense, and so that at the ensuing trial the court may know exactly what the issue is." That is the purpose of the above quoted provision of the Act of 1915, and that purpose will be enforced. In addition to this it may be remarked in passing that the defendant could, if in no other way, have become conversant with these allegations of plaintiff's statement by asking for a bill of particulars and the same reasons apply to the third and fourth paragraphs of the affidavit of defense. The fifth paragraph is to the effect that the plaintiff has no legal right to maintain an action in the manner and form in which the action is instituted against the defendant; that Charles F. Schoenbein has no right to sue in the name of the School District of the City of Erie for use Charles F. Schoenbein. In the case of Philadelphia v. Stewart, 195 Pa., 309, the same question arose and it is there held that "In an action on the bond, the city being the obligee and having an interest to enforce the condition, the city recovers on its legal title, though the money ultimately goes to use plaintiff," and by inference, at least, that suit may be brought on a bond for use of persons for whose security it was given even though nothing may be actually due the city, and we are unable to distinguish any reason why such a right of.action should be given on a bond to municipalities and denied on a bond given to the School District, especially when by the Act of May 8, 1911, the School Districts of the Comomnwealth are vested as bodies corporate with all necessary powers to enable them to carry out the provisions of that act, and a part of that act requires the directors to establish, equip, furnish and maintain * * schools (Sec. 401, Page 329, Act of 1911). Hence it is idle to say that the bond given was beyond the power of the School District to make and ultra vires and void and (to again use the language Philadelphia v. Stewart, super) "is as bare of legal as it is of moral merit, as it is the right as well as the interest of the School District to secure good work upon its contracts and there is no better policy towards that end than to satisfy honest and competent workmen that they can rely on being paid. There being no right of mechanic's lien against public works, the work and material men are to that extent in the contractor's power as to pay, and that fact has a natural tendency to produce skimped work and inferior materials by the class of men willing to run that risk. Against this risk the School District is entitled to protect itself by exacting assurance from the contractor that he will pay his honest debts incurred in doing the School District's work, and again, the defendant voluntarily executed a bond as part of the contract with the School Board for certain

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Schoenbein v. National Surety Co.

work and now seeks to avoid the obligations of the bond on the ground that the condition was ultra vires on the part of the School Board to exact. For such defense the legal want of power ought to be shown beyond question.". This has not been done here. We are therefore of the opinion that the plaintiff's claim is stated in a concise and summary form and contains the material facts on which he relies, which are sufficient to entitle him to the judgment demanded and that the suit is properly brought (195 Pa., 309); that to deny generally the allegations of the statement of claim or to aver ignorance or lack of information in regard to the facts averred is insufficient. Fulton v. Bomberger, super; Pittsburgh v. Coal Company, 259 Pa., 290.

The rule therefore granted nunc pro tune, February 17, 1920, for judgment for want of a sufficient affidavit of defense is, now, February 18, 1920, made absolute.