Mullin v. United States
| Decision Date | 10 July 1901 |
| Docket Number | 136. |
| Parties | MULLIN et al. v. UNITED STATES, to Use of CHAPIN-HALL LUMBER CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Louis Marshall, for plaintiffs in error.
L Laflin Kellogg, for defendant in error.
Before SHIPMAN, Circuit Judge, and WHEELER and BROWN, District Judges.
This is a writ of error to review a judgment of the circuit court on a verdict directed for the defendant against the plaintiff in error in an action on a statutory bond for government work. The prosecutor and one of the plaintiffs in error are citizens of the same state, and one assignment of error rests upon this, as showing want of jurisdiction. The statute (28 Stat. 278, c. 280) provides that such a contractor shall 'be required before commencing such work to execute the usual penal bond with good sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the department under the direction of which said work is being or has been prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them and payment for which has not been made, shall be furnished with a certified copy of such contract and bond, upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit, against said contractor and sureties and to prosecute the same to final judgment and execution. ' This bond was given in pursuance of this statute, and one of its conditions is that the contractor 'shall promptly make full payments to all persons supplying him labor or materials in the prosecution of the work provided for in said contract. ' The judiciary act of 1875 (18 Stat. 470) gave the circuit courts jurisdiction of suits of a civil nature 'arising under the constitution or laws of the United States,' where the matter in dispute exceeded, exclusive of costs, the sum or value of $500. This provision was brought into the act of 1887, corrected by that of 1888, where the sum or value, exclusive of interest and costs, exceeds $2,000. 25 Stat. 433. This action is exclusively an action upon the bond, and maintainable only as such by virtue of the statute providing for such a bond, and giving an action upon it to the prosecutor. The suit is therefore distinctively one arising under the laws of the United States, and, as the matter in dispute greatly exceeds $2,000, jurisdiction under these acts is clear. In U.S. v. Henderlong (C.C.) 102 F. 2, much relied upon for the plaintiff in error, the matter in dispute was only $1,262.25, which was too small for jurisdiction under this clause of the act of 1887; and it was held that a suit in this form for the use and benefit of a prosecutor was not such a 'controversy in which the United States are petitioners or plaintiffs' as to give jurisdiction under that clause, which is not limited by the amount in dispute. That case does not seem to have any bearing upon this. The plaintiff in error Mullin is not an obligor on the bond, and, as this is a suit directly upon the bond, he cannot be held liable for a breach of this condition. The judgment must therefore be reversed as to him. The judgment is separable, and the suit may be discontinued as to him. This makes an examination of the assignments of error in favor of the other plaintiff in error necessary and proper.
Thomas J. Regan was the contractor and an obligor on the bond. Gottfried Krueger, Martin Burne, and M. A. Mullin, one of the plaintiffs in error, were indemnitors of the Fidelity & Deposit Company, the other obligor, and plaintiff in error, for Regan. The Chapin-Hall Lumber Company, the prosecutor and defendant in error, made a contract with Regan in writing for furnishing the materials and labor at...
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...the bond and its statutory effect would apply to supplies furnished defendant in the performance of the contract, as held in Mullin v. U.S. (C. C. A.) 109 F. 817. It been held that, when the contractor goes into receivership, and the receivers are in the act of completing performance of the......
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...v. Packard, 109 U.S. 421, 3 S.Ct. 289, 27 L.Ed. 984; Bock v. Perkins, 139 U.S. 628, 11 S.Ct. 677, 35 L. Ed. 314; Mullin v. United States, 109 F. 817 (C.C.A.2); United States v. Axman, 152 F. 816 3. The second cause of action is for breach of contract and presents no federal aspects. It rema......