Board of Commissioners v. Diebold Safe Lock Co

• Decision Date: 03 March 1890
• Citation: 10 S.Ct. 399,33 L.Ed. 674,133 U.S. 473
• Parties: BOARD OF COMMISSIONERS v. DIEBOLD SAFE & LOCK CO. et al
• Court: U.S. Supreme Court

133 U.S. 473

10 S.Ct. 399

33 L.Ed. 674

BOARD OF COMMISSIONERS v. DIEBOLD SAFE & LOCK CO. et al.

March 3, 1890.

The original suit was commenced March 4, 1885, by the Diebold Safe & Lock Company, a corporation of the state of Ohio, against the board of commissioners of Delaware county, in the state of Indiana, by a claim in the form of a complaint, filed with the county auditor, and by him presented to the board of county commissioners, in accordance with the provisions of the Revised Statutes of Indiana of 1881, (which are copied in the margin,)¹ and containing the following allegations:

That on January 20, 1882, the board of commissioners entered into a written contract with William H. Meyers and Edward F. Meyers, partners as W. H. Meyers & Son, a copy of which was annexed, showing that Meyers & Son agreed to construct a jail for the county on or before September 4, 1882, agreeably to the plans and specifications of a certain architect, and to provide all the materials therefor, for the sum of $20,000, which the board of commissioners agreed to pay in monthly payments, on the architect's certificate, reserving on each payment 20 per cent., to be paid on the completion and acceptance of the building; Meyers & Son agreed to give bond to secure the performance of the agreement; and it was agreed that 'the county will not in any manner be answerable to or accountable for any loss or damages that may happen in or to said works, or any part or parts thereof, respectively, or for any of the materials or other things used and employed in finishing and completing the said works,' and that, 'should the contractors fail to finish the work on or before the time agreed upon, they shall pay to the party of the first part the sum of twenty-five dollars per diem for each and every day thereafter the said works shall remain unfinished, as and for liquidated damages.' That a part of the work to be done and materials furnished under the contract consisted of iron-work; and that on March 6, 1882, Meyers & Son assigned to the plaintiff so much of that contract as related to this work by an agreement in writing, as follows:

'Fort Wayne, Ind., March 6th, 1882. We, the Diebold Safe and Lock Company, at Canton, O., hereby agree to construct and place in position, in the new jail to be erected in the city of Muncie, Delaware Co., Ind., all of that portion of the work for same, (locks included,) and described under the head of iron and chrome-steel work, in specifications and according to plans delineating them, as already adopted by the board of county commissioners of said county the same as though the contract for such work had been awarded us direct. The contract price for said work to be seventy-seven hundred dollars ($7,700) for above work, completed and accepted by the superintendent of the building and the county commissioners, to be paid by the said county commissioners in monthly estimates, less amount retained according to law and contract between the county commissioners and Wm. H. Meyers & Son, on completion of said work in full, as per amount named in this contract, and charged by them against W. H. Meyers & Son, and in full settlement with them for such iron and chrome-steel work under their contract with the county commissioners; and any questions that may arise on the construction of the work, or deviations from the plans and specifications that may arise or be deemed advisable, to be arranged and settled wholly between ourselves, and the county commissioners, and the superintendent of the building; and we, the Diebold Safe and Lock Company, in consideration of the acceptance of the foregoing proposition by the said W. H. Meyers & Son, agree to do said work, and insure the same in perfect working order, according to the terms proposed, and to the acceptance of the said architect and county commissioners, and in such quantities and time as shall not materially interfere with the completion of said building, and to complete the whole work on or before August 1st, 1882. DIEBOLD SAFE & Lock Co.'

'We, the said W. H. Meyers & Son named in the foregoing proposition, do hereby accept the same, and agree that the said Diebold Safe & Lock Company shall do and perform the work and labor, and furnish the iron and chrome-steel work for said jail, in manner and form as proposed and agreed by them in the foregoing proposition and agreement, and that they shall receive payment therefor as proposed. Dated Fort Wayne, Ind., March 6th, 1882. W. H. MEYERS & Son.'

That the board of commissioners and the county had notice of and consented to this agreement and assignment when it was made, and before the jail was erected, and before any payments were made to Meyers & Son on account thereof. That the plaintiff, with the knowledge and consent of the board, did the iron-work, and furnished the materials therefor, in accordance with the original contract of the board with Meyers & Son, and to the acceptance of the architect. That such work and materials were of the value of $7,700, and Meyers & Son did the rest of the work upon the building. And that the board had not paid anything on account of the iron-work, although the plaintiff had duly demanded payment therefor. And the plaintiff claimed payment of the sum of $7,700.

The complaint contained a second paragraph, alleging the contract between the board of commissioners and Meyers & Son, its performance by Meyers & Son, and its non-performance by the board, an assignment, dated November 25, 1884, from Meyers & Son to the plaintiff, of all their claims and demands against the board on account of building the jail, and that the sum of $10,000 was due on account thereof from the board to the plaintiff.

The board of commissioners disallowed the claim. The plaintiff appealed to the circuit court of the county; and immediately after the entry of the appeal in that court, and before further proceedings there, filed a petition and bond for the removal of the case into the circuit court of the United States, on the grounds that the plaintiff was a citizen of Ohio and the defendant a citizen of Indiana, and that by reason of prejudice and local influence the plaintiff could not have a fair trial in the state court. The case having been entered on the equity docket of the circuit court of the United States, a motion was made by the defendant to remand the case to the state court, upon the ground that Edward F. Meyers, one of the plaintiff's assignors, was, and always had been, as was admitted, a citizen of Indiana, it being also admitted that William H. Meyers was, and always had bee, a citizen of Michigan, and that the petition for removal was filed too late, after the case had been tried and decided by the board of county commissioners, and been appealed to the circuit court of the county. The motion was denied. The plaintiff then, by leave of the court, made William H. Meyers and Edward F. Meyers parties defendant, and they appeared and answered, admitting the allegations of the complaint, and disclaiming all interest in the suit; and the record showed no further proceedings in regard to them. A demurrer filed by the board of commissioners, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, was overruled. The motion to remand the case to the state court was renewed, and again denied; and the defendant excepted to the overruling of its demurrer, and to the denial of its motion to remand.

The board of commissioners then filed an answer, setting up the following defenses: (1) A denial of all the allegations of the complaint. (2) Payment. (3) Payment to Meyers & Son without notice of the pretended assignment of the contract to the plaintiff. (4) Payment before the assignment mentioned in the second paragraph of the complaint, to Meyers & Son, upon a settlement of accounts, and deducting damages for delay in the work. (5) That, by the laws of Indiana, no contract for the building of a jail shall be let without giving notice by publication for at least six weeks in some newspaper of general circulation in the county. The board of county commissioners is prohibited from entering into any contract for such building until the contractors have filed a bond, with surety, for the faithful performance of the work; and all laborers or materialmen may have an action on the bond for work done or materials furnished. That the board took such a bond from Meyers & Son, which remained on file in the auditor's office, subject at all times to be sued upon by the plaintiff, or any other laborer or material-man engaged in the construction of the jail. That before the commencement of the suit, and long before the board had any notice of the assignment set out in the second paragraph of the complaint, the board fully settled its account with Meyers & Son, including the value of the work claimed to have been performed by the plaintiff, and paid the amount found to be due to Meyers & Son, after deducting damages for delay in completing the building. That the board could not by law enter into the contract which it was alleged, in the first paragraph of the complaint, to have entered into, or lawfully consent or agree to treat the plaintiff's agreement with Meyers & Son as an assignment of so much of their contract with the county, and never did in fact recognize or assent to it, or promise to pay the plaintiff, but always treated Meyers & Son as the only contractors with whom it had anything to do. And that the plaintiff, having full knowledge of all the facts aforesaid, elected to rely wholly upon the responsibility of Meyers & Son for their pay in doing the work mentioned in the complaint, and on June 30, 1884, brought an action of assumpsit against Meyers & Son on the same cause of action, which was still pending. (6) That the circuit court of the United States had no jurisdiction, because the plaintiff was a citizen of Ohio, the board of commissioners and Edward...