The opinion of the court was delivered by: GIBSON
The court, after hearing and consideration, makes the following Findings of Fact and Conclusions of Law:
The parties herein have filed a Stipulation of Facts, which is now referred to, made part hereof and adopted as the findings of the Court.
I. The complainant, Maryland Casualty Company, is entitled to judgment in its favor for the find payments under the contract between Tavares Brothers and the City of Pittsburgh for the repaving of the street, in amount of $4,126.17.
II. The Maryland Casualty Company, under its suretyship contracts herein, is entitled to claim subrogation to the rights of the City of Pittsburgh and of persons supplying labor or materials.
III. The subrogation rights of the Surety, which has completed the work of the contractors for whom it has furnished bond, and has paid debts of the contractors for labor and materials pursuant to its bond to secure such payments, date from the execution and delivery of the bonds, and not from the date of completion of the work or of the payments for labor and materials.
IV. The subrogation rights of the Surety herein are superior to, and entitled to priority over, the claims of the Bank which loaned moneys to the contractors, upon assignments by said contractors of amounts due, or to become due, to them.
V. Judgment must be entered against the West End Bank, interpleaded defendant.
On August 30, 1939, Tavares Brothers entered into a contract with the City of Pittsburgh for the repaving of Maytide Street. The contractors were required to give two bonds to the City as required by statutes, one for the performance of the work and the other for the payment of materials furnished and labor supplied in the execution of the work. The main contract with the City made those bonds part of the contract. By the application of the contractors to the Surety Company for the bonds (not filed with the bonds as part of the contract), all percentages retained by the City in event of default by the contractors were assigned to the Surety. The contract signed on behalf of the City and by the contractors gave the City the right to terminate the employment of the contractors if the latter failed or refused to prosecute and terminate the work within the specified time, or if they should fail to make prompt payment to persons supplying labor or materials for the work. It also provided that the contractors should not receive any further payment until the work is finished.
The contractors failed to finish the work and the Surety, upon demand of the City, completed it at an expense of $528.36, and, in addition, paid bills of the contractors for labor and materials in the amount of $10,101.81.
After the completion of the work the City of Pittsburgh determined that $4,126.17 remained in its hands out of the contract price thereof. Of this amount the West End Bank (of Pittsburgh) claimed $3,000 upon an assignment to it by the contractors, under date of October 5, 1939, of all monies due, or that may become legally due them under the contract for repaving of Maytide Street, and the loan to contractors of $3,000 on December 15, 1939, upon the note of the contractors with the said assignment as collateral. The Maryland Casualty Company, the Surety, also ...