United States v. Rundle

Citation100 F. 400
Decision Date05 February 1900
Docket Number557.
PartiesUNITED STATES, to Use of FIDELITY NAT. BANK OF SPOKANE, WASH., v. RUNDLE et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Happy Hindman & Langford, for plaintiffs in error.

Henley Kellam & lindsley and A. G. Avery, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

An act of congress approved August 13, 1894, entitled 'An act for the protection of persons furnishing materials and labor for the construction of public works,' provided that thereafter '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 obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials 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 payment for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and 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 and to prosecute the same to final judgment and execution: provided, that such action and its prosecution shall involve the United States in no expense'; and with the further provision that the court in which such action is brought may require further security for costs in case the judgment goes for the defendant. 28 Stat. 278. On the 1st day of July, 1897, N. B. Rundle entered into a contract with the United States for the erection of certain buildings upon the army post grounds near Spokane, Wash., and, pursuant to the above statute, executed a bond to the United States in the penal sum of $10,000, with D. W. Henley and F. E. Snodgrass as sureties, conditioned that, if the principal 'shall and will in all respects duly and fully observe and perform all and singular the covenants, conditions, and agreements in and by said contract agreed and covenanted by said N. B Rundle to be observed and performed, according to the true intent and meaning of the said contract, and as well during any period of extension of said contract that may be granted on the part of the United States as during the original term of the same, and shall promptly make full payments to all persons supplying him labor or material in the prosecution of the work provided for in said contract,' then the obligation to be void; otherwise, to remain in full force and virtue. The present action was brought in the court below upon this bond by the Fidelity National Bank, in the name of the United States, against Rundle as principal and Henley and Snodgrass as sureties, upon claims for labor and material furnished to said Rundle, of which the bank alleged in its complaint it had become the owner by purchase and assignment. During the progress of the work by Rundle, and while the buildings were but partially completed, the government, in the exercise of a right reserved in the contract, took the work out of his hands, and upon the same day notified the sureties of its action. With the consent of the government the sureties at once took up the work so contracted for, and upon its completion by them the government accepted it as full performance of the contract. Rundle made no defense to the action, and the plaintiff took judgment against him by default for the full amount claimed in its complaint. The sureties resisted the plaintiff's claim on three grounds: First, that the...

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28 cases
  • Shoshoni Lumber Co. v. Fidelity & Deposit Co. of Maryland, 1801
    • United States
    • United States State Supreme Court of Wyoming
    • August 29, 1933
    ...163 P. 438; Southern Surety Co. v. Bank, 47 F.2d 93; Bank v. Cas. Co. (Wash.) 161 P. 473; Bank v. F. Surety Co. 28 F.2d 485; U. S. v. Rundle, 100 F. 400; West v. Surety (Nebr.) 225 N.W. 673; Sepp v. McCann (Minn.) 50 N.W. 246; Smiley v. State (Ind.) 110 N.E. 223; Dudley v. Railway Co. (Mich......
  • National State Bank of Newark v. Terminal Const. Corp.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 9, 1963
    ...Co., 65 F.2d 548 (5th Cir.) cert. denied 290 U.S. 667, 54 S.Ct. 88, 78 L.Ed. 577 (1933); United States to Use of Fidelity Nat'l Bank of Spokane, Wash. v. Rundle, 100 F. 400 (9th Cir., 1900); Maryland Casualty Co. v. Philbrick & Nicholson, Inc., 147 Wash. 277, 266 P. 142 (1928); cf. Southern......
  • U.S. Fidelity & Guaranty Co. v. Yeilding Bros. Co. Department Stores, 6 Div. 932.
    • United States
    • Supreme Court of Alabama
    • May 19, 1932
    ... 143 So. 176 225 Ala. 307 UNITED STATES FIDELITY & GUARANTY CO. v. YEILDING BROS. CO. DEPARTMENT STORES ET AL. 6 Div. 932. ...The law should be liberally. construed in this respect. Griffith v. Rundle, 23. Wash. 453, 63 P. 199, 55 L. R. A. 381; U.S. v. Rundle (C. C. A.) 100 F. 400. . . ......
  • New York Indem. Co. v. Niven, 6 Div. 626.
    • United States
    • Supreme Court of Alabama
    • March 12, 1931
    ...United States v. American Surety Co. (C. C. A.) 135 F. 78; United States v. Heaton (C. C. A.) 128 F. 414. See, also, United States v. Rundle (C. C. A.) 100 F. 400; Griffith v. Rundle, 23 Wash. 453, 63 P. 199, 55 R. A. 381; Klein v. Collins, 159 La. 704, 106 So. 120. And it is the federal ru......
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