Fidelity Deposit Company of Maryland v. United States (187 U.S. 315)

This action was brought in the supreme court of the District of Columbia, by defendant in error, against one Peyton D. Vinson, as principal, and plaintiff in error as surety, on certain bonds, to recover the sum of $530.06. One of the bonds was in the penal sum of $25,000, for the faithful performance of the covenants and conditions of a contract entered into by said Vinson with the District of Columbia. It was covenanted in the bond that Vinson would 'promptly make payments to all persons supplying him with labor or materials in the prosecution of the work provided for in said contract.' And it was alleged in the declaration that Lewis E. Smoot furnished said Vinson certain materials, which were used by the latter in the completion of the work under the contract, of the value $599.73, of which amount only $206.95 was paid, leaving a balance of $392.78 due.

The other bond was for the penal sum of $6,000, with like covenants and conditions. The declaration alleged that said Smoot furnished materials of the value of $143.28 to Vinson, which were used in the performance of the latter's contract with the District of Columbia, and that said amount was not paid, though demanded. And recovery of said amounts due was prayed against Vinson and the plaintiff in error, amounting to the sum of $530.06. The declaration was accompanied by an affidavit made by Smoot under the requirements of rule 73 of the court, hereinafter set out. The affidavit was very full and circumstantial, and virtually repeated the declaration.

The plaintiff in error filed pleas to the declaration, in which it alleged that neither it nor Vinson owed the sums of money demanded, or any part of either, 'in the manner and form as the said United States above complained.' And also pleaded that neither it nor Vinson had broken the conditions, or any of them, on said bonds 'in the manner and form as the said United States had above complained.'

The plaintiff in error on March 14, 1902, filed the following affidavit of defense:

'J. Sprigg Poole, being first duly sworn, deposes and says:

'1. That he is now, and for ten years last past has been, the general agent for the District of Columbia of the Fidelity & Deposit Company of Maryland, the defendant in the above-entitled cause.

'2. That the said defendant admits the execution of the bonds as alleged in the declaration in said cause.

'3. That the said defendant, its officers and agents, has no personal knowledge of the contracts alleged in said declaration to have been entered into by and between Lewis E. Smoot and Peyton D. Vinson, or of the indebtedness alleged to be due from said Vinson to said Smoot under said alleged contracts; that the said defendant, its officers and agents, has not sufficient information, in the opinion of the affiant and of the counsel of said defendant, its attorney of record in said cause, to be safe in admitting or denying under oath the allegations of said declaration in regard to said contracts between said Smoot and Vinson, or the indebtedness thereunder, and in so far as said defendant is sought to be charged with the payment of said alleged indebtedness from Vinson to Smoot it calls for strict proof of said alleged indebtedness.

'4. That said defendant is advised by its counsel that it is entitled under the law of the land to trial by jury as to the truth of the allegations of the declaration in regard to said alleged contracts between the said Smoot and Vinson and the alleged indebtedness under said contracts; that said defendant does not waive, but expressly claims, the benefit of the right of trial by jury, and prays that this honorable court will not enter judgment against it, the said defendant, without trial by jury upon the issues tendered by the pleas filed to said declaration.

'That this prayer for trial by jury is not made for the purpose of delay, but solely because the defendant is advised by counsel, and believes, that, under the law of the land, it is entitled to trial by jury in this cause, and that it cannot waive or surrender that right without exposing itself to the danger of being deprived of its property without due process of law.'

On the 18th of March the defendant in error filed a motion 'for judgment, under the 73d rule, for failure of the defendant to file with his plea a sufficieht affidavit of defense,'

Upon hearing, the motion was granted and judgment entered as prayed for in the declaration. The judgment was affirmed by the court of appeals, and the case was then brought here.

The 73d rule is as follows:

'In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his cause of action, and the sum he claims to be due, exclusive clusive of all set-offs and just grounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interest and costs, unless the defendant shall file, along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff's claim in whole or in part. And where the defendant shall have acknowledged in his affidavit of defense his liability for a part of the plaintiff's claim as aforesaid the plaintiff, if he so elect, may have judgment entered in his favor for the amount so confessed to be due.

'Sec. 2. The provisions of this rule shall not apply to defendants who are representatives of a decedent's estate except when the affidavit filed with the declaration sets forth that the contract sued on was directly with such representative, or that a promise to pay was made by him.

'Sec. 3. When the defendant is a corporation, the affidavit of defense may be made by an officer, agent, or attorney of such corporation.

'Rules of the supreme court of the District of Columbia adopted at the April term, 1898, p. 28.'

Mr. L. H. Poole for plaintiff in error.

Mr. Crandal Mackey for defendant in error.

Mr. Justice McKenna delivered the opinion of the court: