United States ex rel. Starrett-Fields Co. v. Massachusetts Bonding & Ins. Co.

• Decision Date: 28 March 1913
• Docket Number: 326.
• Citation: 215 F. 241
• Parties: UNITED STATES for benefit of STARRETT-FIELDS CO. v. MASSACHUSETTS BONDING & INS. CO. et al.
• Court: U.S. District Court — District of Massachusetts

215 F. 241

UNITED STATES for benefit of STARRETT-FIELDS CO. v. MASSACHUSETTS BONDING & INS. CO. et al.

No. 326.

United States District Court, D. Massachusetts.

March 28, 1913

Eaton &amp McKnight and Charles T. Cottrell, both of Boston, Mass., for plaintiff.

French & Curtiss and Thomas F. Strange, all of Boston, Mass., A. M Schwarz, of New York City, and S. A. Dearborn, of Boston Mass., for intervening petitioners.

Gaston Snow & Saltonstall and Francis W. Bacon, all of Boston, Mass., for defendants.

DODGE Circuit Judge.

This case is submitted, upon the question whether or not suit has been prematurely brought, on facts agreed by the parties.

The plaintiff and the defendant Amity Construction Company contracted for work to be done for the plaintiff at Ft. Andrews in Boston Harbor. The contract was in writing and a copy is annexed to the declaration. The defendant insurance company became surety for the Amity Construction Company on a bond to the government, a copy of which is also annexed to the declaration. A condition of the bond was that the Amity Company should promptly make full payment to all persons supplying it with labor or materials in the prosecution of the work contracted for. All this was in May, 1911. The work contracted for was completed March 29, 1912. The constructing quartermaster then reported to the quartermaster general that there was due from the plaintiff to the Amity Company $4,805. On January 3, 1913, the Comptroller of the Treasury reported a decision to the Secretary of War that the above balance should be paid to the defendant insurance company, less the cost of inspection, additional expenses, and damages because of the Amity Company's default. On January 11, 1913, a deduction was made from the total amount due on the contract for the charge for inspection, the contract not being completed on time, and $4,473.50 was paid to the defendant insurance company as final payment on the contract.

The contract and bond and everything done with reference to them were subject to the provisions of an act passed February 24 1905 (33 Stat. 811), which amended an act passed August 13, 1894 (28 Stat. 278). By this legislation every contractor with the United States, for construction or repairs of public buildings or works, is required to give bond conditioned upon prompt payment of all persons supplying labor or materials in the prosecution of the work, and to any such person is given the right to intervene and be made a party to any action instituted by the United States on the contractor's bond. If the United States brings no suit within six months 'from the completion and final settlement of said contract,' any such person is authorized to bring suit in the name of the United States, in this court, if the contract was to be executed in this district, irrespective of the amount in controversy, for his use and benefit, against the contractor and his surety on the bond. It is provided, however, that no suit by any such creditor shall be commenced until after 'the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract and no later. ' It is provided, further, that when any such creditor institutes such a suit, 'only one action shall be brought and any creditor may file his claim in such action and be made a party thereto within one year from the completion of work...