United States to use of Morris v. Richardson

• Decision Date: 04 May 1915
• Docket Number: 1324.
• Parties: UNITED STATES, to Use of MORRIS, v. Richardson et al.
• Court: U.S. Court of Appeals — Fourth Circuit

223 F. 1010

UNITED STATES, to Use of MORRIS, v. Richardson et al.

No. 1324.

United States Court of Appeals, Fourth Circuit.

May 4, 1915

S Gordon Cumming, of Hampton, Va., for plaintiff in error.

Harry K. Wolcott, of Norfolk, Va. (Wolcott, Wolcott, Lankford &amp Kear, of Norfolk, Va., on the brief), for defendants in error.

Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

WADDILL District Judge.

W. G Morris and the firm of R. H. Richardson & Sons, were each general contractors engaged in government work in this community. On the 8th of July, 1910, Morris entered into a contract with the United States for the construction of a building at Portsmouth, Va., known as the 'Naval Hospital Building,' and on the 30th of May, 1911, Richardson &amp Sons contracted with the government for the construction of a building at Fortress Monroe, Va., known as the 'Marine Officers' Quarters.' The two contractors each gave bond to the government for the faithful execution of their contracts; the appellee the American Surety Company becoming surety on each bond. Morris did work and furnished materials as subcontractor under R. H. Richardson & Sons for the Marine Officers' Quarters at Fortress Monroe, and Richardson & Sons furnished labor and materials as subcontractors under Morris for the Naval Hospital Building at Portsmouth. Upon the completion of these contracts, which occupied some months, Morris owed Richardson & Sons $1,598.59 for work and supplies furnished the Naval Hospital building, and Richardson & Sons owed Morris $1,611.60 for work and supplies in connection with the Marine Officers' Quarters. At this stage, Richardson & Sons were duly adjudged involuntary bankrupts, and in their schedules in bankruptcy made no reference to the indebtedness between themselves and Morris, though as a matter of fact there was a balance of $13.01 due Morris.

The appellees Lackey, Wolcott & Liphart were duly elected trustees in bankruptcy of Richardson & Sons, and subsequent to their appointment and qualification this suit was instituted by the United States of America, suing for the use of W. J. morris, against Richardson & Sons, their trustees in bankruptcy, and the American Surety Company, setting up a claim of $3,224. The American Surety Company appeared and filed its pleas of payment, condition performed, and two special pleas of set-off. Plaintiff thereupon joined issue on the first plea, admitted payment on account of said debt whereby its claim was reduced to $1,611.60, with interest, and moved to reject the two special pleas of set-off. A jury was waived, and the case submitted to the judge, upon motion to reject said pleas and upon the merits, resulting in the judgment complained of; that is to say, the court denied the motion to reject said pleas, and gave the plaintiff judgment for $13.01, the difference between the balance due on the claim sued on and the amount due by Richardson & Sons and set up in the offset. To this judgment the writ of error in this case was sued out, which presents mainly for the consideration of the court the question of the propriety of the court's action in overruling the defendant's motion to reject said pleas; the contention being that the pleas set up matters wholly independent of the contract sued on, and as the cause of action accrued to the plaintiff under a contract with the government of the United States, for the faithful performance of which the bond...