Guilford Granite Co. v. Harrison Granite Co.

Mr. Justice Shepard delivered the opinion of the Court: 1. The demurrer raising the question of jurisdiction was rightly overruled. Howard v. Chesapeake & O. R. Co. 11 App. D. C. 300, 333. In that case, the plaintiff, who was a citizen of the State of Indiana, sued the defendant, a foreign corporation, — 20 — to recover damages for an injury sustained on its railway in the State of Kentucky. Citation was served upon the agent of the defendant, which maintained an office for the purpose of carrying on business in the District of Columbia, under the provisions of § 790, D. C. Rev. Stat., which reads: “In ictions against foreign corporations doing business in the District, all process may be served on the agent of such corporation, or person conducting its business, or, in case he is absent and cannot be found, by leaving a copy at the principal place of business in the District, and such service shall be effectual to bring the corporation before the court.” This statute was passed February 22, 1867, and remained in full force until it was incorporated, with considerable amplification, in the Code which took effect January 1, 1902 (§ 1537). By reason of the exclusive power of the United States within the District of Columbia, the courts created therein by their authority have, necessarily, from the first, exercised the ordinary jurisdiction possessed by the Maryland State courts, before the cession, as well as that ordinarily exercised by Federal courts within the limits of the States. These courts having from the beginning exercised jurisdiction in actions against residents of the States, when found and personally served with process in the District, the statute above recited was enacted by Congress, following the example of some of the States, to meet a condition arising out of tire rapid growth of private corporations and the wide extension of their operations. Foreign corporations were generally allowed to do business in other States, and in the District of Columbia, and to obtain redress in their courts; wherefore it was eminently proper that provision should be made through which their liability, when so engaged, might, in turn, be asserted. St. Clair v. Cox, 106 U. S. 350, 355, 27 L. ed. 222, 224, 1 Sup. Ct. Rep. 354; Dallas v. Atlantic, M. & O. R. Co. 2 MacArth. 146. The last case, decided in 1875, maintained the view that the supreme court of the District had jurisdiction in such a case, upon service in accordance with the conditions of the statute, and the same passed without question until the year 1897, in — 21 — the case of Howard v. Chesapeake & O. R. Co. 11 App. D. C. 300, 333. Tbe contention on behalf of the appellants in the present ease raises a point that was not suggested in that of Howard v. Chesapeake & O. R. Co. That contention is that the District of Columbia is a judicial district, and that the special terms of its supreme court are circuit and district courts of the United States; wherefore their jurisdiction is governed by the judiciary act of March 3, 1887. The clause of § 1 of that act, that is specially relied on, reads as follows: “But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” 24 Stat. at L. 552, chap. 373, U. S. Comp. Stat. 1901, p. 508. Without following the argument touching the question whether the trial courts of the District of Columbia are circuit or district courts of the United States in either a general or special sense, which we regard as irrelevant, our opinion is that § 1 of the act of 1887, defining the jurisdiction of those courts in districts within the several States, was not intended to apply in the District of Columbia. Also, without pausing to discuss the particular objects apparent in the terms of that section, or to point out other and disastrous consequences that would follow the adoption of appellant’s contention, we think it sufficient to say that the general restrictions of the Constitution, which govern the exercise of jurisdiction by the courts of the United States within the several States of the Union, have no operation in the District of Columbia, and the conditions of jurisdiction existing here are so different that the provisions of the particular section are plainly inap — 22 — plicable. That- there may be some general provisions of that act not locally inapplicable, and therefore controlling under the provisions of § 93, D. C. Rev. Stat. (see also D. C. Code, § 1), is a question not involved. That there may readily be such, however, is not inconsistent with our conclusion as to the operation of the particular section under consideration. 2. The first contention on behalf of the appellants, going to the merits of the case, is that the jury should have been instructed to1 find for defendants, because the plaintiff’s evidence failed to support the allegation of the declaration to the effect that the plaintiff had performed the conditions of the contract recited in the bond sued on. It is argued that the agreement of October 26, 1898, rescinding the part of the contract of September 13, relating to' the foundation, made a new contract, proof of the performance of which was not in accordance with the declaration aforesaid. We fail to perceive any substantial ground for this contention. The original contract contained several distinct undertakings or promises, following each other in the necessary order of the prosecution of the entire work to be done. For the performance of each a separate, independent price was agreed upon in payment. The bond, by its terms, related to and covered each and every one of these undertakings of the contractor. It was competent for plaintiff to show the performance on its part, or willingness at the proper time to perform each of these obligations, as well as the failure of the contractor under each, with the damages resulting therefrom. It was competent to show a complete settlement for any item of the specified work as it progressed, in accordance with the requirement of the contract, if such was the case, confining the claim for damages, as was here done in the bill of particulars, to such as had not been performed; and it was equally competent to show that the obligation regarding any item had been fully settled and discharged by voluntary rescission. The surety has no right to complain of the payment made to its principal in accordance with the letter of the contract, nor of the voluntary discharge of an independent part thereof when the same is its equivalent, where — 23 — there is no detriment to its interests. This is not the case of a material change of contract, or its extension. Gross v. Allen, 141 U. S. 528-537, 35 L. ed. 843-849, 12 Sup. Ct. Rep. 67. This conclusion is unimportant, however, in view of the fact that the defendants’ twelfth plea made this partial rescission of the original contract a special ground of defense, alleging that it was without the knowledge or consent of the surety, to which plaintiff replied, alleging consent, and the fact also that it lessened, instead of increased, the surety’s liability. The evidence, without contradiction, tended to show the complete knowledge and acquiescence of the surety, through its agent; and, moreover, though the fact was apparently not treated as material, that the surety bond was not delivered, nor its premium paid, until the same day. This issue was submitted to the jury with appropriate instructions. 3. Another ground upon which error has been assigned in refusing to direct a verdict for the Fidelity company, to the effect that the plaintiff in an action upon the bond could not show a waiver of any one of the stipulated conditions precedent in lieu of performance, is likewise untenable. Phillips & C. Constr. Co. v. Seymour, 91 U. S. 646, 651, 23 L. ed. 341, 343; Lamson & G. Mfg. Co. v. Russell, 112 Mass. 387; 5 Enc. Pl. & Pr. 368; 4 Enc. Pl. & Pr. 630. The waiver of performance had not the effect to make a new contract or obligation, so as to bring the case within the line of authorities relied on by the appellant. 4. Assignments of error founded on objections to the introduction of the evidence tending to show waiver of the condition relating to the notice in writing required to be given to the Fidelity company, and on exceptions to the instructions relating thereto, that were given on behalf of the plaintiff, may be considered together. The declaration, it will be remembered, sets out this condition among others, and concludes with a general allegation of performance by the plaintiff of all the conditions of the bond and contract. Defendant followed pleas of general, denial of indebtedness and damage with others, two of which specially denied the plaintiff’s performance of the conditions of — 24 — the bond. These were stricken ont on motion of the plaintiff, and there was no error in doing so, because it was necessary for plaintiff to make the proof as a condition of its recovery; or it could, as above held, prove the waiver of performance on the part of the defendant instead. Notwithstanding the apparent justice of the verdict, in view of the uncontradicted evidence in support of the waiver, we are constrained to uphold the contention of the appellant, because there is no foundation therefor in the pleadings. Instead of pleading performance of the condition, as was done, the plaintiff should have alleged the facts constituting the waiver of the condition requiring the notice in writing, in excuse of nonperformance. 4 Enc. Pl. & Pr. pp. 629 et seq.} and cases last above cited. 5. As the case must be tried anew, it is proper to say that there is nothing in the point made respecting the money appropriated by Congress for the relief of the principal contractor, Pohl-Smith, on account of the unforeseen conditions which required the increased excavation, and the driving of piles for the foundation. As a part of the contract with the Guilford company relating to work on the foundation had been voluntarily rescinded, those circumstances were irrelevant. 6. There was no reversible error committed in refusing to permit the witness for the Guilford company to read in evidence the purported copy of the “log” kept by the plaintiff’s foreman, Ileidenreich, shoving the items of expense incurred in furnishing the work of that contractor. The part of the same that had been copied by the witness, if it tended to contradict the plaintiff’s claim in any particular, would have been admissible, had the absence or loss of the original been properly accounted for. The original had been delivered to the representative of the Guilford company, and, in the absence of proof that it had been returned to the plaintiff, it was incumbent upon the defendant to show that inquiry and search had been made for it of the persons with whom, or at the place where, it was said to have been left by the witness. — 25 — Finding no error in the proceedings relating to the Guilford Granite Company, the judgment as to it will be affirmed with costs; but, for the reasons given, the judgment against the Fidelity & Deposit Company of Maryland will be reversed, with costs incurred on its behalf in this appeal, and the cause remanded for another trial. It is so ordered. Mr. Chief Justice Alvey concurred, in the judgments entered, but not upon all of the grounds stated in the opinion.