280 F. 338 | 4th Cir. | 1922
On the 3d of October, 1917, the plaintiff in error R. H. Arnold entered into a contract with the United States to erect and furnish materials for the erection of a certain storehouse in the United States navy yard at Charleston, S. C. At the time of entering into said contract, the Globe Indemnity Company, also plaintiff in error, as surety, obligated itself, in the penalty of $65,190, 'for the faithful performance of the contract by the Arnold Company; said contract and bond being severally entered into and executed in pursuance of the act of Congress of the 13th of August, 1894 (28 Stat. c. 280, p. 278), as amended by act of February 24, 1905 (33 Stat. c. 778, p. 811 [Comp. St. § 6923]). On the 4th of October, 1917, the defendant in error, W. B. Guimarin & Co., composed of W. B. Guimarin and E. R. Hayward, copartners trading as W. B. Guimarin & Co., contracted with the Arnold Company as subcontractor to furnish the labor, materials, tools, appliances, and other things required for all plumbing, heating, roofing, drains and fire surface in connection with such building. The work under said contracts was completely performed and final settlement made, determining the amount due by the government.
This suit, in the name of the United States, suing for the benefit of the subcontractors, was instituted to recover the balance due the subcontractor (the general contractor having failed to pay the same) more than six months and within one year after the making of the final settlement as'aforesaid, to wit on the 16th day of April, 1920; the United States having instituted no suit during the first period of six months after such settlement. After bringing the suit, sundry other subcontractors and materialmen duly filed their petitions of intervention, as authorized by the act of Congress in question. The defendant filed its answer to the plaintiff’s petition, and raised the question of jurisdiction, alleging the suit was prematurely brought — that is to say, within the first six months of the period after settlement of the accounts; the defendant’s contention being that the 20th day of September, 1920, and not the 16th of April, 1920, was the true date of the settlement, assuming any final settlement had ever been made under said contract within the meaning of the act.
Plaintiff in error insisted that this question should be determined' in advance of the hearing on' the merits, either by the court itself, or by submitting the same to the jury. This motion the court overruled, believing it best to hear the testimony thereon, and try the whole case on its merits. The case accordingly went to the jury; the defendant insisting that the jury should be sworn, not only to try the claim as presented by the plaintiffs, but also those of the intervening petitioners, which motion was also overruled. Upon testimony being adduced on the issues thus presented, namely, the question of jurisdiction raised as aforesaid, and upon the merits as to the plaintiff’s claim, the defendants moved to direct a verdict, as well upon the merits as upon the question of jurisdiction, which motions the court overruled, and in
The assignments of error, 26 in all, are made to the rulings of the cour-t below. These need not be considered in detail, but grouped according to their subject-matter. They relate chiefly to the question of jurisdiction, which turns upon (1) whether or not a final settlement of the account had been made, when made, and whether the suit was prematurely instituted; (2) whether the court should have impaneled a jury to try the plaintiff’s claim alone, or together with the other intervening petitioners; (3) to the ruling of the court in admitting in evidence the contracts in suit, and sundry correspondence had in connection therewith, as well between the parties to the contracts as with government officials; (4) whether there was error upon rendering its judgment upon the verdict in the name of the United States for the full penalty of the bond, and in directing the petitioners’ claims to be referred to a master for determination; and (5) whether the court erred in the form of its judgment entered upon the verdict. These will be disposed of in the order named.
The judgment of the District Court, directing the reference to a master to pass upon the claims of the several petitioners, should be modified, and a jury trial awarded, to determine in a single trial the amounts due the several petitioners.
It is evident, upon consideration of the order of judgment and judgment thereon, that the court held, and meant to hold, that the contract between R. H. Arnold & Có. and the United States, dated the 3d of October, 1917, referred to in the proceedings, had been fully performed, and final settlement made on the 16th day of April, 1920, and that there was due to the plaintiffs from the general contractor the sum of $7,-693.31, with interest from December 19, 1918, amounting in all to $9,-035.59, and that, suit having been instituted upon the bond in the ñame of the United States, suing for the use of W. B. Guimarin & Co., judgment should be entered in favor of the United States for tire sum of $65,190, the penal sum of the bond referred to, to be discharged by the payment to the said Guimarin & Co. of $7,693.31, with interest from the 19th of December, 1918, until paid, together with costs, $54.11; it appearing that the plaintiffs’ and petitioners’ claims combined do not exceed the penal sum of said bond.
We think the judgment as thus understood is correct and should be so modified, and that the several petitioners, upon ascertainment of the amounts respectively due them, should be entitled to like judgments; the, total judgments, including that of the plaintiffs herein, not to exceed the penalty of the bond. The decision of the lower court, as herein modified, will be approved and affirmed.
Modified and affirmed.