Penn Iron Co v. William R.Trigg Co

Decision Date07 February 1907
Citation106 Va. 557,56 S.E. 329
PartiesPENN IRON CO., Limited. v. WILLIAM R.TRIGG CO. et al.
CourtVirginia Supreme Court

1. United States—Contracts—Contractors' Bonds—Actions.

A bond executed by a contractor under contract with the United States, conditioned on his performance of the contract and on his paying for materials used in the prosecution of the work, if viewed as a bond not executed pursuant to any statute and as the property of the United States, cannot be sued on by a materialman, in the name of the United States, for his benefit, unless a federal statute authorizes it.

2. Same.

The words "public works." as used in Act Cong. Aug. 13. 1894, c. 280, 28 Stat. 278 [U. S. Comp. St. 1901. p. 25231, providing that a contractor with the United States for the construction of any "public building or * * * public work" shall execute a bond conditioned on his making payment to persons furnishing labor and materials in the prosecution of the work, etc., relate to fixed improvements, such as fortifications, river and harbor improvements, otc, and do not include a movable article, such as a seagoing dredge; and a person supplying materials to a contractor under contract for the construction of such a dredge is not entitled to sue in the name of the United States for his benefit on a bond given by the contractor, conditioned on his paying persons supplying labor or materials in the prosecution of the work.

Error to Circuit Court of City of Richmond.

Action by the Penn Iron Company, Limited, against the William R. Trigg Company and another. There was a judgment of dismissal, after sustaining demurrers to the declaration, and plaintiff brings error. Affirmed.

Geo. Bryan, for plaintiff in error.

J. J.Leake and Christian & Christian, for defendants in error.

HARRISON, J. In September, 1901, the William R. Trigg Company, a corporation engaged in the construction and equipment of ships, entered into a contract with the United States of America, by which it undertook to construct and equip a certain seagoing suction dredge, and at the same time executed a bond, in the penalty of $60,000, with the Virginia Trust Company as surety, payable to the United States of America, conditioned for the faithful performance by it of the covenants, conditions, and agreements of such contract, and, further, that it should promptly make full payment to all persons supplying it labor or materials in the prosecution of the work provided for in the contract.

The Penn Iron Company, Limited, claiming to have furnished materials to the value of $476.78, which were used in the construction of the seagoing suction dredge mentioned, has instituted this action of debt in the name of the United States of America, suing for the benefit and at the cost of the Penn Iron Company, Limited, against the W. R. Trigg Company and Its surety, the Virginia Trust Company, upon the bond for $60,000, to enforce the payment of its claim.

Demurrers, Identical In substance, were filed to the declaration by each of the defendants, and upon consideration thereof the suit was dismissed. This action of the circuit court is assigned as error.

In the view we take of this case it is not necessary to consider all of the questions discussed by counsel. Viewing the bond sued on as a common-law bond—that Is, as a bond not executed pursuant to any statute—it belongs to, and is the property of, the United States, and no suit can be brought on it by any beneficiary under it, in the name of the United States, for his benefit, unless some federal statute authorizes it.

In Carmichael v. Moore, 88 N. C. 29, which was a suit upon an official bond payable to the state, the court held that the person injured by the neglect of the officer could not sue upon the bond, except by virtue of the authority contained in the statute, saying: "The bond sued on Is the property of the state, and the only authority the plaintiffs have for putting it in suit is that which is specially given in the statute, and whichin terms Is limited to a suit brought In the name of the state."

In the case of Corporation of Washington v. Young, 10 Wheat 406, 6 L. Ed. 352, it was held that a person entitled to a prize ticket had no right to bri»g a suit for the prize against the manager of the lottery upon his bond, executed to the corporation, conditioned to truly execute the duty and authority vested In him by the authority of the ordinance of the corporation, without its consent Chief Justice Marshall, delivering the opinion of the court, said: "No person who is not the proprietor of an obligation can have a legal right to put it in suit, unless such right be given by the Legislature; and no person can be authorized to use the name of another without his assent, given in fact or by legal intendment" See, also, Com. v. Fugate, 1 T. B. Mon. (Ky.) 1; Com. v. Hatch, 5 Mass. 591.

The numerous statutes, both state and federal, authorizing suits of this character by parties interested, would seem to furnish conclusive evidence of their necessity; otherwise, the lawmaker has been engaged In a very idle ceremony.

In the light of the authorities cited, the sole question to be determined here is: Did the plaintiff have authority from the sovereign to whom this bond is payable to institute this action upon it?

The plaintiff relies for Its authority to put the bond in suit upon the act of Congress approved August 13, 1894, which provides that any person entering into a formal contract with the United States for the construction of any "public building, or the prosecution and completion of any public work, " shall be required, before commencing such work, to execute the usual bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payment to all persons supplying him or them labor and...

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3 cases
  • State ex rel. Wilkinson v. Murphy
    • United States
    • Alabama Supreme Court
    • January 31, 1939
    ... ... v. Mann, 115 Va. 865, ... 80 S.E. 753, Ann.Cas.1915c, 973; Penn Iron Co. v. Wm. R ... Trigg Co., 106 Va. 557, 56 S.E. 329; Ellis v ... ...
  • Irwin v. United States, 7784.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 28, 1941
    ...the United States, unless some federal statute authorizes it. United States v. Faircloth, 49 App.D.C. 323, 265 F. 963; Penn Iron Co. v. Trigg Co., 106 Va. 557, 56 S.E. 329, writ of error dismissed, 215 U.S. 611, 30 S.Ct. 397, 54 L.Ed. We are by no means unmindful of the strong equities of a......
  • Norfolk & W. Ry. Co v. Denny's Adm'r
    • United States
    • Virginia Supreme Court
    • November 7, 1907

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