229 F. 127 | 3rd Cir. | 1915
In August, 1912, the Fidelity & Deposit Company of Maryland became surety in the penal sum of $18,-000 on the bond of J. W. Emery, who had contracted to do certain work for the government. Complying with the federal statutes, the-bond provided, inter alia, that Emery should “promptly make payment to all persons supplying labor or materials -in the prosecution of the work contemplated by said contract.” Emery settled finally with the government on March 13, 1914, but on that date he was (and still is) indebted to several subcontractors that had furnished materials. Among these were William T. Fowden, who brought suit on the bond on February 25, 1915, and J. J! Witman, who intervened in that suit on February 26. Afterward Witman filed a statement of his claim, the Fidelity Company filed an affidavit of defense thereto, and the District Court, considering the affidavit insufficient (except to a small part of the claim), entered judgment in Witman’s favor for $1,161.56, of which $119.94 is interest.. This writ of error challenges the correctness of that judgment.
It is to be regretted that the controversy was not disposed of in the court below by a brief amendment, but as this was not done we must take the case as we find it. We should- be more impressed with the surety’s argument, if there was room for a real doubt concerning the facts; but we regard the position as purely technical, because for two reasons the conclusion is almost irresistible that no suit was ever brought by the govérnment. The first reason is because under date of September 12, when the six months period was on the very point of expiring, the government certified to the accuracy of a copy of Emery’s
The judgment is affirmed.