United States v. Bailey

• Decision Date: 18 August 1913
• Docket Number: 937.
• Citation: 207 F. 782
• Parties: UNITED STATES, to Use of CHIEF ALL OVER et al., v. BAILEY et al.
• Court: U.S. District Court — District of Montana

207 F. 782

UNITED STATES, to Use of CHIEF ALL OVER et al., v. BAILEY et al.

No. 937.

United States District Court, D. Montana.

August 18, 1913

W. H Meigs, of Great Falls, Mont., for plaintiffs.

Freeman & Thelen, of Great Falls, Mont., for defendants.

BOURQUIN District Judge.

This action is pursuant to Act Feb. 24, 1905, c. 778, 33 Stat. 811 (U.S. Comp. St. Supp. 1911, p. 1071), by unpaid laborers of a subcontractor of contractors with the United States, upon public work, against said contractors and their bondsmen. The case is tried by the court upon an agreed statement of facts wherefrom it appears that the contract with the United States provided for the construction of irrigation works to reclaim arid lands under the control of the Secretary of the Interior; that the work would be done to the satisfaction of the chief engineer of the United States, and, when completed to his satisfaction and a release of all claims against the United States on account thereof was executed by the contractors, final payment of the balance due the latter would be made; that the contract was 'completely executed,' proof thereof made by the contractors to the satisfaction of said chief engineer, and release of all claims as aforesaid filed, August 18, 1908; that the contractors' claim in connection therewith was examined settled, and certified in the amount due thereon by the Auditor for the Interior Department on September 10, 1908 and that the 'last check or payment made' to the contractors was dated on or about September 10, 1908. The action was commenced on September 4, 1909. The issue is whether or not it was timely commenced. The court is of the opinion that it was. The aforesaid statute provides that like actions '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 contract, and not later. ' It creates a right, liability, and remedy in behalf of those in like situation to the beneficiaries herein, conditioned upon action commenced within a stipulated time. It is in its nature remedial and to be liberally construed, but the condition must be performed or the right, liability, and remedy expire. The statute has made time of their essence. The prescribed time involves two events-- performance and final settlement-- and it is only after both have occurred that the time...