United States v. United States Fid. & Guar. Co.

• Decision Date: 13 May 1907
• Citation: 80 Vt. 84,66 A. 809
• Court: Vermont Supreme Court
• Parties: UNITED STATES, to Use of J. G. STRAIT & SON. v. UNITED STATES FIDELITY & GUARANTY CO.

66 A. 809

80 Vt. 84

UNITED STATES, to Use of J. G. STRAIT & SON.

v. UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Vermont. Chittenden.

May 13, 1907.

Exceptions from Chittenden County Court; Willard W. Miles. Judge.

Action by United States, to the use of J. G. Strait & Son, against the United States Fidelity & Guaranty Company. A demurrer to a plea to the jurisdiction was sustained, and defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Powell & Powell, for plaintiff. E. M. Horton, for defendant.

WATSON, J. This case is here on demurrer to the plea to the jurisdiction "that the supposed cause of action, and each and every of them (if any such have accrued to said plaintiff) accrued * * * out of the jurisdiction of this court; that is to say, in the state of Maryland, in the state of New York, and in the jurisdiction of the United States courts, and not in this jurisdiction. * * *" This plea is dilatory in character, and will be considered accordingly. The declaration is not made a part of the plea, hence not before us in that way. It is a well-understood principle of pleading that a plea in abatement (and this is analogous to a plea in abatement and governed by the same rules) can derive no help from the writ or declaration, unless referred to in such a way as to make it a part of the plea; but this is the extent of the rule. For other purposes the court may take notice of the writ or declaration; it being the same against which the plea is pleaded. As said by Judge Redfield, in Pearson v. French, 9 Vt. 349: "No intendment is to be made in favor of a plea in abatement, but every reasonable intendment should be made in favor of the regularity and sufficiency of the proceedings." In Leonard v. McArthur, 52 Vt. 439, the plea was denominated "a plea in abatement"; but the matters of fact therein alleged were dehors the record, and the only question raised thereby was held to be one of jurisdiction. In discussing the plea (which was held defective) it is said that for any purpose of a judgment of the court upon the matters set forth in the plea the writ and declaration are not before the court; they not being recited or referred to in the plea. "When they will be so treated is indicated in Barnet v. Emery, 43 Vt. 178, in distinction from the cases in which it is held that a plea in abatement will derive no help from them, unless referred to in such a way as to make them part of the plea." Thus showing that what is there said regarding the writ and declaration not being before the court has reference solely to their use in aid of the plea. Moreover, the court there demonstrated the extent of the rule by its application; the writ and declaration not being considered before the court in aid of the plea, but in fact noticed in support of the proceedings. "The jurisdiction," says the court, "so far as subject-matter and parties apparent on the face of the writ and declaration is concerned, is well enough" As showing the rule to be thus limited, the case of Slayton v. Inhabitants of Chester, 4 Mass. 478, to which reference was made by the court in Pearson v. French, is directly in point. There the defendant asked that the writ abate because in service the copy was not left with the clerk, or with one of the principal inhabitants of the town. In the demurrer to the plea one cause assigned was that it appeared from the return indorsed on the writ that a copy of it was left with one of the principal inhabitants of the town, and that defendants were estopped from denying it. It was objected that the return was no part of the demurrer, and that the court could not ex officio take notice of it. It was held that the return could be noticed, and the plea was held insufficient.

The declaration is in debt, declaring in two counts on a bond alleged to have been executed and delivered by the defendant, a corporation organized and existing under the laws of the state of Maryland, and doing business in this state, to the plaintiff, dated March 24, 1903, whereby the defendant acknowledged itself to be held and firmly bound jointly and severally with the E. H. Denniston Company, a corporation organized and existing under the laws of the state of New York, and doing business in this state, unto the United States of America in the penal sum of $50,000, etc. It is alleged in the second count that the bond was subject to the following conditions: "That if the said E. H. Denniston Company shall well and truly perform all and singular the covenants, conditions, and agreements in a certain contract entered into on the 16th day of March, 1903, between said E. H. Denniston Company and the United States of America, represented by Capt. T. B. Lamoreaux, constructing quartermaster at Burlington, Vermont, and shall promptly make full payments to all persons supplying it, the said E. H. Denniston Company, labor or materials in the prosecution of the work provided for in said contract, then the said obligation shall be void and of no effect, otherwise to remain in full force and virtue." It is averred that the said E. H. Denniston Company has not performed its said covenants and agreements, but has broken and disregarded the same, for that J. G. Strait and W. R. Strait, of Wolcott, in the county of Wayne and state of New York, partners, etc., under the firm name and style of J. G. Strait & Son, "did furnish unto the said E. H. Denniston Company at Burlington in the county of Chittenden and state of Vermont, divers materials used in the prosecution of the work provided for in said contract entered into on the 16th day of March, 1903, between said E. H. Denniston Company and the United States of America as aforesaid, by reason of which the said E. H. Denniston Company owes unto the said J. G. Strait & Son the sum of three thousand dollars," etc.

A cause of action "consists of every fact which it is necessary for the plaintiff to prove, if traversed, in order to sustain his action. Read v. Brown, 22 Q. B. Div. 128; Hutchinson v. Ainsworth, 73 Cal. 455, 15 Pac. 82, 2 Am. St. Rep. 823; Bruil v. Northwestern Mut. Relief Ass'n, 72 Wis. 433, 39 N. W. 529. It embraces not only the contract in the case, but the breach of it also. In this case it is something more than the contract entered into by the defendant it includes the furnishing of the materials by J. G. Strait & Son to the E. H. Denniston Company and the latter's failure to pay for the same. Without these facts being shown, no breach of defendant's contract appears, and no right of action exists against it. As before seen, the second count alleges that the E. H. Denniston Company was doing business in this state, and that these materials were furnished it by J. G. Strait & Son at Burlington. These allegations show a contract made in this state, and one of which our courts have jurisdiction. Osborne & Woodbury v. Shawmut Ins. Co., 51 Vt. 278; Stramburg v. Heckman, 44 N. C. 250.

The plea contains no direct and positive denial of the facts thus alleged. An inferential or argumentative denial is not sufficient Sumner v. Sumner, 36 Vt. 105; Morse v. Nash, 30 Vt. 76. To meet the requirements of good pleading, the plea must negative every fact from which jurisdiction may be presumed. Martin, Civil Procedure, 209; Diblee v. Davison, 25 Ill. 486. The highest degree of certainty is required in pleas of this character, and all defects may be reached by general demurrer. Gould's Pl. c. 3, §§ 57-59; Id. c. 9, § 12; Leonard v. McArthur, 52 Vt. 439; Diblee v. Davison, above cited; Landon v. Roberts, 20 Vt. 286. In Cunningham v. Caldbeck, 63 Vt. 91, 20 Atl. 974, it was in effect held that pleas to the jurisdiction are not required to have the same technical strictness as pleas in abatement. Clearly such is not the true doctrine of dilatory pleading, and in this regard that case is overruled.

Since part of the cause of action arose at Burlington, in this state, the county court in which this action was brought has jurisdiction of the cause of action. In Ilderton v. Ilderton, 2 Black. H. 145, in discussing the question of jurisdiction and of laying venue of matters transitory arising in a foreign country, Lord Chief Justice Eyre said: "Of matters arising in a foreign country, pure and unmixed with matters arising in this country, we have no proper original jurisdiction; but of such matters as are merely transitory, and follow the person, we acquire a jurisdiction by the help of that fiction to which I have alluded, and we cannot proceed without it; but if matters arising in a foreign country mix themselves with transactions arising here, or if they become incidents in an action, the cause of which arises here, we have jurisdiction. * * * In the very infancy of commerce, and in the strictest times, as I collect from a passage in Brooke, Trial, pl. 93, the cognizance of matters arising here was understood to draw to it the cognizance of all matters arising in a foreign country which were mixed and connected with it and in these days we should hardly hesitate to affirm that doctrine." In Jackson v. Spittall, L. R. 5 C. P. 542, the contract in question was made in the Isle of Man. The breach took place in Manchester, England. There the question of jurisdiction was controlled by statute, but the proper construction of that statute was in question. In deciding this point the court, seeking aid by considering what the law was at the time the statute passed, quoted with approval the law above given laid down by his Lordship in Ilderton v. Ilderton, with the further statement that there was no trace of any objection ever having been maintained, on the ground that in a transitory action there was no jurisdiction, unless every fact necessary to be proved in order to support the action occurred within the jurisdiction. In Boot v. Edwards, 3 Blatchf. 310, Fed. Cas. No. 4,908, the action was brought in the Circuit Court of the United States for Connecticut...