United States v. Breeden

• Decision Date: 03 March 1953
• Docket Number: No. A-7413,A-7411.,A-7413
• Citation: 110 F. Supp. 713
• Parties: UNITED STATES for Use and Benefit of BRADY'S FLOOR COVERING, Inc. v. BREEDEN et al. UNITED STATES for Use and Benefit of KETCHIKAN SPRUCE MILLS, Inc. v. BREEDEN et al.
• Court: U.S. District Court — District of Alaska

110 F. Supp. 713

UNITED STATES for Use and Benefit of BRADY'S FLOOR COVERING, Inc. v. BREEDEN et al.

UNITED STATES for Use and Benefit of KETCHIKAN SPRUCE MILLS, Inc. v. BREEDEN et al.

Nos. A-7413, A-7411.

District Court, Alaska Third Division, Anchorage.

March 3, 1953.

Cuddy, Cuddy & Dunn, Anchorage, Alaska, for plaintiffs.

Davis, Renfrew & Hughes, Anchorage, Alaska, for defendants.

DIMOND, District Judge.

These cases are brought under the provisions of an act of Congress commonly known as the Miller Act, making provision for bonds of contractors engaged in the construction, alteration or repair of public buildings or public works, approved August 24, 1935, 49 Stat. 793, 794, Title 40, Sections 270a to 270d, inclusive, U.S.C.A. The Act in part requires with relation to such public works contracts:

"* * * (2) A payment bond with a surety or sureties * * * for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. * * *"

Cause No. A-7413 embraces three separate causes of action, two asserted by plaintiff, Brady's Floor Covering, Inc. in its own behalf, and one on an assigned claim. In No. A-7411, sixteen separate causes of action are pleaded, one asserted by the plaintiff, Ketchikan Spruce Mills, Inc., in its own behalf, and the others on assigned claims.

Breeden and Smith, defendants in each case, are insolvent, and so the several claims are asserted against the defendant, General Casualty Company of America, in No. A-7413, and against the defendant, Continental Casualty Company, in No. A-7411.

The parties have agreed upon the several amounts due the plaintiffs and they have either been paid in fact or payment will be assuredly made at an early date and so no question concerning payments of the principal sums demanded is involved.

The issue here presented arises out of the claims of the plaintiffs, in one case for both interest and attorneys' fees and in the other case for attorneys' fees only. The claims for attorneys' fees are based upon the provisions of Sections 55-11-51 and 55-11-52 of Alaska Compiled Laws Annotated, 1949, which read as follows:

"§ 55-11-51. Compensation of attorneys. The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties; but there may be allowed to the prevailing party in the judgment certain sums by way of indemnity for his attorney fees in maintaining the action or defense thereto, which allowances are termed costs.

"§ 55-11-52. Costs allowed of course to plaintiff. Costs are allowed, of course, to the plaintiff upon a judgment in the district court in his favor in the following cases:

"First. In an action for the recovery of the possession of real property, or where a claim of title or interest in real property, or right to the possession thereof, arises upon the pleadings, or is certified by the court to have come in question upon the trial;

"Second. In actions for fines and forfeitures, and the actions provided for in chapters two and four of title fifty-six;

"Third. In an action involving an open mutual account, where it appears to the satisfaction of the court that the sum total of such accounts of both parties exceeds one hundred and fifty dollars;

"Fourth. In an action for the recovery of personal property;

"Fifth. In an action not hereinbefore specified, for the recovery of money or damages, when the plaintiff shall recover fifty dollars or more.

"But in an action for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, seduction, or breach of promise of marriage, if the plaintiff recovers less than fifty dollars damages, he shall recover no more costs and disbursements than damages; and in an action to recover the possession of personal property, if the plaintiff recover property or the value thereof, as established on the trial, and damages for the detention of the same, in all less than fifty dollars, he shall recover no more costs and disbursements than the sum of such value and damages."

The sections of our procedural statutes above quoted are part of an act of Congress approved June 6, 1900, entitled "An Act Making further provision for a civil...