United States for Use of Port Blakely Mill Co. v. Massachusetts Bonding & Ins. Co.

• Decision Date: 08 August 1912
• Docket Number: 1,949.
• Parties: UNITED STATES for Use of PORT BLAKELY MILL CO. et al. v. MASSACHUSETTS BONDING & INS. CO. (JOHN DOUGLAS CO. et al., Interveners).
• Court: U.S. Court of Appeals — Ninth Circuit

198 F. 923

UNITED STATES for Use of PORT BLAKELY MILL CO. et al. v. MASSACHUSETTS BONDING & INS. CO. (JOHN DOUGLAS CO. et al., Interveners).

No. 1,949.

United States District Court, W.D. Washington, Northern Division.

August 8, 1912

This is a suit brought to recover from the defendant upon a bond for $53,674, given by it to secure the performance of a contract entered into by E. J. Rounds and M. J. Hursen, copartners with the United States for the erection of certain buildings at Ft. Ward, in this district. The contract provided that these partners should 'furnish all materials and labor and shall construct said buildings. ' The bond entered into by the defendant provided that, unless the copartnership should fully perform its contract and 'promptly make full payment to all persons supplying the labor or materials in the prosecution of the work provided for in said contract,' it should be effective. After the bringing of this suit, the interveners above named came into the suit claiming to have furnished the partnership materials in the construction. Issue was joined by the defendant upon the complaint and complaints in intervention. The cause was referred for the taking of testimony, which has been returned, arguments heard, briefs filed, and the cause submitted to the court for decision, upon stipulation without a jury. The defendant admits the contract and the giving of the bond, but puts in issue the allegations that materials were furnished for which payment has not been made.

Defendant has settled with the Port Blakely Mill Company, R. T. Davis (or Tacoma Mill Wood Supply Company), Travers & Stewart, and the Philip Carey Company, plaintiffs, leaving for decision the cases made by F. T.

Crowe &amp Co., Galbraith, Bacon & Co., of the original plaintiffs, and the abovenamed interveners.

The contract was completed and settlement made with the government July 30, 1910. This suit is brought under Act Aug. 13, 1894, c. 280, 6 Fed.St.Ann. 125, 28 Stat. 278 (U.S. Comp. St. 1901, p. 2523), as amended by Act Feb. 24, 1905, c. 778, 10 Fed.St.Ann. 343, 33 Stat. 811 (U.S. Comp. St. Supp. 1911, p. 1071).

Hastings & Stedman, for plaintiffs.

Peters & Powell, for defendant.

Richard Saxe Jones, for interveners John Douglas Co. and Brunswick-Balke-Collander Co.

Milo A. Root, for interveners Rogers & Kohler Co.

CUSHMAN, District Judge (after stating the facts as above).

Upon the argument and briefs, the defendant seeks to avoid liability upon several grounds, among others, because no affidavits were filed by claimants with the quartermaster's department, as required by the statute. This objection goes to all the claims. The statute provided:

'(Contractors for Public Buildings or Work to Give Bond to Pay for Labor and Material-- Suit on Bond.) That the act entitled 'An act for the protection of persons furnishing materials and labor for the construction of public works,' approved August thirteenth, eighteen hundred and ninety-four, is hereby amended so as to read as follows:

'That hereafter any person or persons entering into a formal 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, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor or materials in the prosecution of the work provided for in such contract; and any person, company or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by the United States on the bond of the contractor, and to have their rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of the United States. If the full amount of the liability of the surety on said bond is insufficient to pay the full amount of said claims and demands, then after paying the full amount due the United States, the remainder shall be distributed pro rata among said intervenors. If no suit should be brought by the United States within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit to the department under the direction of which said work has been prosecuted that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, 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, for his or their use and benefit against said contractor and his sureties, and to prosecute the same to final judgment and execution: Provided, that where suit is instituted by any such creditors on the bond of the contractor it shall not 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...