Appeal, No. 398 | Pa. | May 15, 1916
Opinion by
The plaintiff was a subcontractor who had furnished certain material used in the construction of a postoffice building in the City of Wilmington, Delaware, and instituted this suit upon the bond of the contractor to recover the balance due him. That bond was given in pursuance of the Act of Congress approved August 13,1894, chapter 280, 28 Stat. 278, as amended by the Act of February 24, 1905, 33 Stat. 811. The Act of 1894 provided that any person entering into a contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, should, before commencing such work, execute a bond, conditioned that the contractor would promptly make payments to all persons supplying him labor and materials in the prosecution of the work provided for in the contract; and a further provision of the act was that persons supplying labor or materials for the prosecution of work for the government should have a right of action upon the bond of the contractor “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 act created a new cause of action by permitting persons not parties to a contract with the government of the United States to bring suit on the bond given by the contractor, for the recovery of moneys due them for labor and materials furnished. There was no direction in the act as to the court in which suit on the bond might be brought; but a second act, approved the same day, August 13, 1894, Chapter 282, Section 5, 28 Stat. 279, entitled “An act relative to recognizances, stipulations, bonds and undertakings, and to allow certain corporations to be accepted as surety thereon,” pro-
While, under these two Acts of August 13,1894, a subcontractor upon work done for the government could have enforced the cause of action given him in either a State or Federal Court, on February 24, 1905, an act of Congress was approved, entitled “An act to amend an act, approved August 13, 1894, entitled, ‘An act for the protection of persons furnishing materials and labor for the construction of public works.’ ” This act provides that subcontractors shall have a right of action upon a contractor’s bond, “and shall be, and are hereby authorized to bring suit in the name of the United States in the Circuit Court of the United States in the district in which said contract was to be performed and executed, irrespective of the amount in controversy in such suit, and not elsewhere.”
The contract for the construction of the postoffice building in Wilmington was entered into in 1911, and this action was brought by the appellee in the Court of Common Pleas No. 2, County of Philadelphia, on the bond of the contractor given to the United States. Before any testimony was taken the defendant moved to dismiss for want of jurisdiction. This was denied, as was its prayer for binding instructions, based on the
The two Acts of August 13,1894, are to be regarded as in pari materia. The first is “An act for the protection of persons furnishing materials and labor for the construction of public works,” and the second, “An act relative to recognizances, stipulations, bonds and undertakings, and to allow certain corporations to be accepted as surety thereon.” The second act provides that any surety company doing business under its provisions may be sued in any court in the United States which then or thereafter might have “jurisdiction of actions or suits upon such recognizance, stipulation, bond or undertaking, in the district in which such recognizance, stipulation, bond or undertaking was made or guaranteed, or in the district in which the principal office of such company is located”; but the question now before us is as to the court which has had jurisdiction of a suit on a contractor’s bond given after the passage of the Act of 1905. .We have been referred to numerous cases by learned counsel for appellee, construing the Act of August 13, 1894, chapter 282, in connection with the question of jurisdiction, but they all involve contracts entered into before the passage of the Act of 1905, which was not retroactive: United States Fidelity & Guaranty Co. v. United States, 209 U.S. 306" court="SCOTUS" date_filed="1908-04-06" href="https://app.midpage.ai/document/united-states-fidelity--guaranty-co-v-united-states-ex-rel-struthers-wells-co-96829?utm_source=webapp" opinion_id="96829">209 U. S. 306; Davidson Marble Company v. Gibson, 213 U.S. 10" court="SCOTUS" date_filed="1909-02-23" href="https://app.midpage.ai/document/davidson-bros-marble-co-v-united-states-ex-rel-gibson-96990?utm_source=webapp" opinion_id="96990">213 U. S. 10; and they throw no light on the question of jurisdiction in an action brought upon a contractor’s bond given since February 24, 1905. If the act of congress, approved on. that date, limits, in clear and unmistakable terms, to a particular court jurisdiction in an action on such a bond, it cannot be .exercised
The purpose of the Act of 1905 is to provide for one suit upon a contractor’s bond, in one jurisdiction, to the manifest advantage not only of the surety or sureties upon it, but of those to be protected by it; and if that purpose is to be given effect, a multiplicity of suits in various jurisdictions throughout the country will be wisely avoided.
In the absence of the authority given by congress to a subcontractor to bring an action on the contractor’s bond, no such action could be brought. The authority given to bring it is expressly limited by the Act of 1905. A subcontractor or subcontractors shall have a right of action on the bond “and shall be, and are hereby authorized to bring suit in the name of the United States in the Circuit Court of the United States in the district in which said contract was to be performed and executed, irrespective of the amount in controversy in such suit, and not elsewhere.” These words, “and not elsewhere,” can have but one meaning, and that is, “no other place,” “in no other court.” In thus conferring jurisdiction upon a particular court congress clearly excluded that of any other forum. The words, “and not elsewhere,” do not mean merely, as learned counsel for appellee contend, that suit may not be brought in any other Federal Court, leaving a subcontractor still at liberty to bring his suit in a state court. If such had been the intention of congress, it could have readily so expressed itself by saying “and in no other Circuit Court of the United States.” But by the words, “and not elsewhere,” every other forum than the one specifically named is clearly excluded. The act, read in its entirety, is in keeping with the intention clearly so expressed.
The words, “and not elsewhere,” in the Act of 1905 have been considered and discussed in a number of cases. In Davidson Marble Company v. Gibson, supra, the action by the subcontractor upon the contractor’s bond was
With us the meaning of the words, “and not elsewhere,” as used in the Act of 1905, is apparently settled. In United States v. Schofield Co., 239 Pa. 582" court="Pa." date_filed="1913-03-17" href="https://app.midpage.ai/document/united-states-v-schofield-co-6251602?utm_source=webapp" opinion_id="6251602">239 Pa. 582, it was
As the court below was utterly without jurisdiction, nothing done by the defendant in appearing and making defense could have given it jurisdiction. The defendant could not have waived its right to question a jurisdiction which had no existence and which could not have been conferred even by consent.
Judgment reversed.