United States Fidelity Guaranty Company v. United States (209 U.S. 306)

This is a writ of error to the circuit court of appeals for the second circuit, which brings up for review the judgment of that court affirming that of the circuit court of the eastern district of New York in favor of the defendant in error (plaintiff below) against the plaintiff in error for the sum of $2,054.23. The action was brought in the circuit court above mentioned, in the name of the United States, for the use and benefit of Struthers Wells Company against the plaintiff in error, and against the individual defendant Flaherty, as well as one Lande, upon a bond dated December 10, 1903, executed by Flaherty as well as one the above-mentioned plaintiff in error as surety, by which they were held bound in the sum of $40,000, to be paid the United States as liquidated damages, the condition of the obligation being that if Flaherty, his successors, heirs, etc., should well and truly execute the contract annexed to the bond, which he had entered into with Colonel W. A. Jones, U.S. A., engineer, of the fifth lighthouse district, for and in behalf of the United States, by which Flaherty covenanted and agreed to completely construct and deliver the metal work for the Baltimore lighthouse, Maryland, according to all the conditions of the said contract, and should promptly make payments to all persons supplying said Flaherty labor and materials in the prosecution of the work provided for in such contract, then the obligation was to be void; otherwise to remain in full force and virtue.

It was averred in the complaint that the action was brought in the name of the United States by Struthers Wells Company, for its use and benefit, against the plaintiff in error and Flaherty (and also one Lande, who had been joined with Flaherty in the contract), pursuant to the act of Congress of August 13, 1894. See 28 Stat. at L. 278, chap. 280, U.S.C.omp. Stat. 1901, p. 2523. The section is set forth in the margin.

The Struthers Wells Company, under an agreement with the defendants Flaherty and Lande, and in or about the month of March, 1904, supplied to them certain materials, described in the complaint, for use by them in the prosecution of the work which they had contracted with the United States to do in constructing the metal work for the Baltimore lighthouse, as mentioned in the bond. The material furnished by the company was of the value of $1,890.25. The company duly performed all the conditions of its contract with the defendants, which it had agreed to perform, and made delivery as provided for in its agreement, and by reason of the premises there became due and payable to the company from the defendants, including the plaintiff in error, the sum of $1,890.25, with interest from June 7, 1904, no part of which has been paid. Judgment was demanded for that sum, with interest, as stated.

The action was commenced on the 12th of April, 1905. The plaintiff in error demurred to the complaint on the ground, first, that the court had no jurisdiction of the person of the defendant the United States Fidelity & Guaranty Company; second, that the court had not jurisdiction of the subject of the action; and, third, that the complaint does not state facts sufficient to constitute a cause of action against the defendant the United States Fidelity & Guaranty Company. This demurrer was overruled, with leave to the defendant to answer, which the defendant refused to do, and thereupon judgment was entered for the plaintiff against it, which was affirmed by the circuit court of appeals.

Mr. Leonidas Dennis for plaintiff in error.

[Argument of Counsel from page 309 intentionally omitted]

Mr. Herbert A. Heyn and Messrs Heyn & Covington for defendant in error.

[Argument of Counsel from page 310 intentionally omitted]

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: