a contractor’s assignee was properly brought in once the Government paid it money from a fund later claimed by the plaintiff, a bonding company which had paid certain bills of the contractor
How later courts described this case
- a contractor’s assignee was properly brought in once the Government paid it money from a fund later claimed by the plaintiff, a bonding company which had paid certain bills of the contractor
Written by the judges who cited it.
The opinion
JONES, Chief Judge.
I concur on the ground that when anyone makes a contract with the Government, he is charged with knowledge of its sovereign immunity, and with the fact that in the event of a dispute his only chance to collect is by suit on such terms as the Government may name; and that since one of the conditions that the Government has named is that such issues shall be tried in a Tucker Act forum which operates without a jury, such a contractor voluntarily and knowingly agrees to such forum in respect to the trial of any issues arising out of the operations under the contract.
By analogy anyone who takes an assignment under the Assignment of Claims Act as security for furnishing money essential to such an operation, and likewise anyone who becomes surety as to its performance, by these acts enters into a legal relationship with the Government and also submits himself to a Tucker Act forum in disputes arising out of this relationship. By these acts he waives the right to trial by jury on the issue that may arise out of the performance of, or payments under the contract. The prime contract, the lending of money upon the assignment, and the surety bond are all part and parcel of one transaction. They should be litigated in one action.
It is idle to talk about one who has improperly collected under a contract having no further interest in it. Of course such a one would like to give a grunt of satisfaction and say everyone else may “go hang.”
One of the most ancient maxims of Anglo-Saxon jurisprudence-is that “Anyone who claims the benefits of a contract must assume its corresponding burdens.”
If the third party has been improperly paid, then either the Government must pay twice, or some just claim must remain unpaid or the one who has been unjustly enriched must be made to disgorge. In either event, if the third party is dismissed, then if justice is to have a chance to prevail, there would of necessity be another lawsuit. I believe that is just what the Contract Settlement Act of 1944, cited in the majority opinion, was intended to prevent.
The third party not only claims some of the benefits. It has secured benefits, the allegations say unjustly. Must the law remain helpless in the presence of a legal wrong, or in the alternative go backward to a multiplicity of suits ?
WHITAKER, Judge, joins in the foregoing concurring opinion.