Appeal, No. 240, March T., 1960, from order of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 2224, in case of Peter J. Mascaro Co. et al. v. Nicholas J. Milonas et al. Order reversed.
Abraham Pervin, with him Sachs, Pervin & Kaufman, for appellants.
J. M. McCandless, with him Kenneth P. Christman, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BOK
This is a suit by a subcontractor against a sub-subcontractor and his surety. The court below sustained preliminary objections to the amended complaint and dismissed it as to both defendants. The plaintiff is the Mascaro Company, a partnership, one of whose partners is dead and is represented by the executors of his estate.We will consider the case against each defendant separately, beginning with the surety.
The factual scaffolding is that Bero Construction Company had a prime contract with the Ohio Turnpike Commission to build part of the Ohio Turnpike. Bero then made a subcontract with Mascaro for part of the work under the Bero contract, and Mascaro made a sub-subcontract with the defendant Milonas for part of the work under the Mascaro contract.
Under the sub-subcontract Milonas engaged to build certain concrete abutments and decks, agreeing that the work be done in accordance with the Turnpike Commission's plans and also with "the terms and conditions
which are part of your [Mascaro's] contract with" Bero under the subcontract. One of Mascaro's obligations under the subcontract was to give Bero a bond "conditioned upon the faithful performance of this contract, the payment of all labor and material bills, and such other obligations as required by the Ohio Turnpike Commission."
The sub-subcontract does not contain in specific terms an agreement by Milonas to pay bills or claims contracted by him during the work. Neither does the subcontract contain in specific terms a promise by Mascaro to pay bills or claims. Hence the reference in the sub-subcontract to the terms of the subcontract cannot be construed as a specific agreement by Milonas to pay such bills and claims.
Milonas provided a bond, as the sub-subcontract called on him to do, with his co-defendant as surety. It bound them to Mascaro upon the condition that "if the Principal [Milonas] shall indemnify the Olbligee [Mascaro] against any loss or damage directly arising by reason of the failure of the Principal ...