United States v. Kimpland

• Decision Date: 18 April 1899
• Citation: 93 F. 403
• Parties: UNITED STATES, to Use of SICA, v. KIMPLAND et al.
• Court: U.S. District Court — Eastern District of New York

93 F. 403

UNITED STATES, to Use of SICA, v. KIMPLAND et al.

United States Circuit Court, E.D. New York.

April 18, 1899

Wilson Bennett & Underhill (Mr. Bennett, of counsel), for plaintiff.

Kellogg Rose & Smith (Mr. Rose, of counsel), for defendant Kimpland.

THOMAS District Judge.

The complaint shows that, by contract concluded August 11, 1897 certain persons, under the firm name of Mairs & Lewis, agreed with the United States to furnish all labor and materials for the construction of two gun emplacements and a mining casement on Plum Island, in the state of New York, together with a wharf or pier, in accordance with certain specifications; that Kimpland, defendant, and another, by bond, guarantied that Mairs & Lewis 'should, in all respects, duly and fully observe and perform, all and singular, the covenants, conditions, and agreements in and by the said contract agreed and covenanted by said Mairs & Lewis to be observed and performed, according to the true intent and meaning of the said contract, * * * and shall promptly make full payments to all persons supplying them labor or materials in the prosecution of the work provided for in said contract. ' This bond was given pursuant to an act of congress passed in 1894, which provides 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 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 labor and material in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the department under the direction of which said work is being, or has been, prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payments for which have not been made, shall be furnished with a certified copy of such contract and bond, upon which said person or persons supplying such labor or materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit, against said contractor and sureties,' etc. 28 Stat. 278.

On the 3d day of September, 1897, the contractors agreed, in writing, with Ellen Sica, that the latter should 'keep a boarding house on Plum Island while such work shall continue whether it be for a longer or shorter period than one year, and to board all the workmen of second parties engaged in said work who may wish to board with her, and furnish them such other supplies as they may need, and render to second parties, once in each month, a bill of the amount of the indebtedness of each of said workmen to her for such board and supplies. ' In consideration whereof, the second parties agreed 'to pay the bills which shall be presented to them, as above provided, by first party, for board and supplies furnished by her to said workmen during the continuance of the said work, out of any moneys which may be due from second parties to said workmen as wages for their work, within reasonable time after the presentation thereof, provided that there shall be sufficient sums due to said workmen, respectively, from second parties to pay their respective bills, and provided that said workmen shall respectively consent that so much of their wages as shall be necessary for that purpose may be paid by second parties to first party, in payment of their respective bills for board and supplies. ' The complaint alleges that, pursuant to this contract, said Sica furnished board to the contractors' laborers, bread and other merchandise to the contractors, and loaned money to the contractors on account of the said contract with the government, for which payment has not been made; and suitable allegations of compliance with the terms of the contract between the said Sica and the contractors are made; and judgment therefor is demanded against the contractors and their sureties. And to this complaint one of the sureties demurs. The learned counsel for the plaintiff insists that the 'furnishing of board and necessaries to the men engaged in this government work constituted a supplying of labor, within the meaning of this statute'; and that 'it is literally true that the plaintiff supplied labor to the contractors, by assisting the contractors in paying for their labor in part'; and also that it was supplying material; and the argument is fortified by the decision in Lybrant v. Eberly, 36 Pa.St. 347, where the contractor agreed to pay his laborers, and also to board them, as part of the consideration, and the court stated that 'the board of the hands appears to have been part of the compensation to be paid for the work and labor in the erection of a house, and, therefore, the cost of it is a proper item in the claim for a lien.' The defendant...