Baker Contract Co. v. United States
Decision Date | 07 February 1913 |
Docket Number | 1,120. |
Parties | BAKER CONTRACT CO. et al. v. UNITED STATES, for Use of PENNOCK et al. |
Court | U.S. Court of Appeals — Fourth Circuit |
This is an action of debt, instituted in the United States District Court for the Northern District of West Virginia by the United States of America, in behalf of and for the use of Joseph W. Pennock, against the Baker Contract Company, a corporation, Philip M. Pfiel, and Geo. E. Lorch. The action is based upon a contractor's bond given by the Baker Contract Company, with the said Pfiel and Lorch as sureties in the penal sum of $75,000, payable to the United States of America. In said bond it appears that the Baker Contract Company had entered into a contract of May 18, 1905, for building dam No. 18 on the Ohio river, which contained the usual conditions as to the carrying out of said contract, and was also conditioned for the prompt and full payment to all persons supplying the said Baker Contract Company with labor or materials in the prosecution of the work provided for in said contract. The said bond was given under the terms of the act of Congress passed February 24, 1905 (33 Stat. 811, c 778), amending the act of August 13, 1894 (28 Stat. 278, c 280 (U.S. Comp. St. 1901, p. 2523)), providing for bond of contractors for public buildings or works, and defining the rights of persons furnishing labor and material, and the remedies on bonds and proceedings in actions thereon, as found in the Supplement of 1905, U.S. Compiled Statutes, page 493. The declaration alleges the execution of the bond, that the Baker Contract Company entered upon the building of the dam mentioned in said contract, and that the relator, Joseph W. Pennock, sold and delivered to the said Baker Contract Company certain lumber for use in the prosecution of said work and filed an itemized statement for the same. The declaration contains the usual allegations common in suits upon bond with conditions, and alleges the full performance of the said contract by the receiver of the Baker Contract Company and the final settlement with the United States February 11, 1910, and that six months had elapsed since the completion and final settlement of said contract, and that no suit had been brought by the United States within said six months against the said Baker Contract Company and the sureties on said bond. These allegations are made pursuant to the requirements of the act of Congress of February 24, 1905, as giving the right of action to the plaintiff as a person who had furnished material for the prosecution of said work. The action was brought in the Northern district of West Virginia, because the act provides that such suit shall be brought in the district in which the contract was to be performed and executed, and not elsewhere. The contract was to be performed in the district in which the suit was brought. The process, as appears by the returns of the officers, was served in the Western district of Pennsylvania.
On November 7, 1910, the defendant Joseph M. Pfiel filed his demurrer to the declaration, and at the same time filed his pleas Nos. 1 and 2, being the plea of nil debet and plea of performance. From time to time other firms and persons who had furnished material or rendered services to the Baker Contract Company for the prosecution of such work were permitted to file their petitions and present their claims in the action, under the terms of the act of Congress of February 24, 1905, which provides that only one action shall be brought, and any creditor may file his claim in said action and be made a party thereto. On the 13th day of January, 1911, the defendant George E. Lorch appeared by attorney, and appeared specially for the purpose of moving to quash the summons, for the reason, as claimed by the defendant, that said summons was illegally and irregularly issued and directed to the marshal of the Western district of Pennsylvania, and illegally served and returned by said marshal. The motion, being heard, was overruled. Lorch then demurred to the declaration, and the demurrer of Lorch and the demurrers previously entered by Pfiel, being argued, were overruled.
One of the objections raised by the demurrer was that the Colonial Trust Company, receiver of Baker Contract Company, had been made a defendant to the action. On the overruling of the demurrers, counsel appeared for the Colonial Trust Company, and moved to dismiss the action as to it, claiming misjoinder of parties defendant. The court sustained this motion, and dismissed the Colonial Trust Company from further appearance in the cause.
On the 14th day of June, 1911, an order was entered referring the case to Abijah Hayes as master commissioner, to state an account between the relator and the defendants, and between the intervening petitioners and the defendants. This order was entered in the action under a special provision relating to actions at law, found in Code W.Va. 1906, c. 129, Sec. 10: 'At law in any case in which it may be deemed necessary, the court may direct any such commissioner or other competent person, either before or at the time of trial, to take and state an account between the parties, which account, when thus stated, shall be deemed prima facie correct, and may be given in evidence to the court or jury trying the case, and the commissioner or other person shall be allowed for such services the same fees that would be allowed a commissioner for similar services, to be taxed in the bill of costs.'
After entering said order of the 14th of June, 1911, and being at the same term of court at which said order of reference was entered, and before the execution of said order of reference, the Parkersburg & Marietta Sand Company filed its petition asking the permission to intervene and file its claim in the said action, and the order allowing it to do so was entered on said 21st day of June, 1911.
There was the taking of evidence on various claims by the said Abijah Hayes, master commissioner, and on the 5th day of January, 1912, he filed his report. It is unnecessary for us to refer to the action of the commissioner as to other claims, but as to the claim of Parkersburg & Marietta Sand Company the said commissioner found against the claim of the said company and refused to allow said claim.
On the 10th day of January, 1912, the exception of the Parkersburg & Marietta Sand Company to the master's report was filed. Upon a hearing of them the court sustained said exceptions as to that portion of said report which found against the right of Parkersburg & Marietta Sand Company to file its petition and prove its claim in said action, and permission was given to the Parkersburg & Marietta Sand Company to offer the necessary proof and evidence to sustain its claim set up in its petition.
On the 20th day of January, 1912, there was a trial of the action and of the several claims which had been filed in the action, under the said act of Congress, before a jury, and a verdict rendered, and the jury brought in their verdict, making a finding as to said several claims, and as to the Parkersburg & Marietta Sand Company the jury found in its favor the sum of $4,422.22, the debt in the petition of intervention mentioned, and the court rendered its judgment in accordance with said verdict, and as to the claim of the Parkersburg & Marietta Sand Company it was that the United States of America, for the use of the Parkersburg & Marietta Sand Company, a corporation, do have and recover of and from the defendants, the Baker Contract Company, a corporation, Philip M. Pfiel, and George E. Lorch, the sum of $4,422.22 with interest and costs, and provided that separate executions might issue on said judgments for the benefit of the respective plaintiffs. The case comes here on writ of error.
William Beard, of Parkersburg, W. Va., for plaintiffs in error.
Thomas Coleman, of Parkersburg, W.Va. (Ralph L. Smith, of Pittsburgh, Pa., and Geo. P. Chase, Dorr Casto, C. D. Forrer, H. P. Camden, and C. D. Merrick, all of Parkersburg, W. Va., on the briefs), for defendants in error.
Before GOFF and PRITCHARD, Circuit Judges, and ROSE, District Judge.
PRITCHARD Circuit Judge (after stating the facts as above).
The assignments of error filed by counsel for the defendants below are numerous. However, those relied upon are grouped under No. 1, as follows:
Counsel for defendants insist that the summons was illegal and irregular, inasmuch as it was issued and directed to the marshal of the Western district of Pennsylvania, and, being served and returned by the marshal of that district, such service was without warrant of law.
The act of Congress of February 24, 1905, being amendatory of the Act of August 13, 1894, among other things, provides:
' * * * If no suit should be brought by the United States within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit to the department under the direction of which said work...
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