United States v. FRANKINI CONSTRUCTION COMPANY, Civ. A. No. 55-58-W.

• Decision Date: 20 January 1956
• Docket Number: Civ. A. No. 55-58-W.
• Citation: 139 F. Supp. 153
• Parties: UNITED STATES of America, for the Benefit and Use of Henry B. BERKOWITZ v. FRANKINI CONSTRUCTION COMPANY et al.
• Court: U.S. District Court — District of Massachusetts

139 F. Supp. 153

UNITED STATES of America, for the Benefit and Use of Henry B. BERKOWITZ v. FRANKINI CONSTRUCTION COMPANY et al.

Civ. A. No. 55-58-W.

United States District Court D. Massachusetts.

January 20, 1956.

Aaron H. Sibley, Boston, Mass., for plaintiff.

Francis E. Sullivan, Boston, Mass., Samuel Rosen, Boston, Mass., Richmond, Rosen & Kagan, Boston, Mass., for defendant.

WYZANSKI, District Judge. (Oral opinion dictated from bench.)

This case is now before me upon the motion of Peerless Casualty Company, filed today (to which filing the claimant, Henry B. Berkowitz, has assented and as to which it is expected that Frankini Construction Company will give an assent promptly).

Although the motion does not state on its face (and thus fails in some respects to comply with the rules) what is the ground upon which the motion is made, it seems to be agreed that the purpose of the motion is to raise the point that this suit was untimely filed.

The suit began with a complaint filed on January 26, 1955, in this court by Berkowitz as assignee of Robbins, a subcontractor utilized in connection with the contract which Frankini Construction Company had with the Government of the United States. This contract is No. DA-19-016-ENG-362. It was a contract in which Peerless Casualty gave a bond and became subject to the provisions of what is commonly called the Miller Act, to be found in Title 40 U.S.C. A. § 270a and following.

It is agreed that on December 6, 1955, the acting General Counsel of the General Accounting Office, having been specially designated to make a certificate pursuant to Section 311(e) of the Act of June 10, 1921, 42 Stat. 20 (that is the Miller Act) certified in accordance with Section 3 of the Act of August 24, 1935, 49 Stat. 793, that final settlement under Contract DA-19-016-ENG-362, dated June 29, 1950, between the United States, represented by the Contracting Officer and the contractor, Frankini Construction Company, was made September 7, 1952.

It is also agreed that Frankini, not being fully satisfied with what had been allowed by the Government, particularly in connection with extra work performed in drilling 17,500 holes for fastening of the corrugated sheet metal covering, said work having been done by a subcontractor, A. Belanger and Sons, filed a claim of extra work under the aforesaid contract. This claim was presented on January 31, 1952. It went through a series of administrative determinations. Finally the Corps of Engineers Claims and Appeals Board on February 15, 1955 (a month after suit was brought in this court) disallowed the claim.

The first point which is made in opposition to the motion is that there is no formal pleading by the surety company here raising the defense that the suit is not timely brought. As a matter of fact it is unnecessary to plead the matter affirmatively. This is not a question of the statute of limitations such as arises in an ordinary contract or like matter. There is a condition precedent imposed by the statute under which the action is brought requiring that

"Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, * * * but no such suit shall be commenced after the expiration of one year after the date of final settlement of such contract."

It is thus incumbent upon the plaintiff or claimant in its complaint to show that it has proceeded in a timely manner. The point made by the plaintiff is without merit. If it did have merit I should allow, and I therefore do now allow, an answer to be filed by the defendant pleading specifically the point that the suit is not timely brought.

The second point made by the plaintiff is that even if the defendant procedurally has moved promptly enough to raise the defense that the suit is not timely brought, the point of timeliness is without merit since the plaintiff says...