198 F. 923 | W.D. Wash. | 1912
(after stating the facts as above). Upon the argument and briefs, the defendant seeks to avoid liability upon several grounds, among others, because no affidavits were filed by claimants with the quartermaster’s department, as required by the statute. This objection goes to all the claims. The statute provided:
“(Contractors for Public Buildings or Work to Give Bond to Pay for Labor and Material — Suit on Bond.) That the act entitled tAn act for the protection of persons furnishing materials and labor for the construction of public works,’ approved August thirteenth, eighteen hundred and ninety-four, is hereby amended so as to read as follows:
“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 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 obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor or materials in the prosecution of the work provided for in such contract; and any person, company or corporation who has furnished labor or materials used in the construction or repair of any public building or public work, and payment for which has not been made, shall have the right to intervene and be made a party to any action instituted by tbe United States on the bond of the contractor, and to have their rights and claims adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of the United States. If the full amount of the liability of the surety on said bond is insufficient to pay tbe full amount of said claims and demands, then after paying the full amount due the United States, the remainder shall be distributed pro rata among said intervenors. If no suit should be brought by the United States within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit to the department under the direction of which said work 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, be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall be, and are hereby authorized to bring suit in the name of the United States in the Circuit Court of the United States in the district in which said contract was to be performed and executed, irrespective of the amount in controversy in such suit, and not elsewhere, for his or their use and benefit against said contractor and his sureties, and to prosecute the same to final judgment and execution: Provided, that where suit is instituted by any such creditors on the bond of the contractor it shall not be commenced until after the complete performance of said contract and final set*926 tlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later: And provided further that where suit is so instituted by a creditor or by creditors, only one action shall be brought, and any creditor may file his claim in such action and be made party thereto within one year, from the completion of the work under said contract, and not later. . If the recovery on the bond should be inadequate to pay the amounts found due to all of said creditors, judgment shall be given to each creditor pro rata of the amount of the recovery. The surety on said bond may pay into court, for distribution among said claimants and creditors, the full amount of the sureties’ liability, to wit, the penalty named in the bond, less any amount which said surety may have had to pay to the United States by reason of the execution of said bond, and upon so doing the surety will be relieved from further liability: Provided further, th¿t in all suits instituted under the provisions of this act such personal notice of the pendency of such suits, informing them, of their right to intervene, as the'court may order, shall be given to all known creditors, and in addition thereto notice of publication in some newspaper of general circulation, published in the state or town where the contract is being performed, for at least three successive weeks, the last publication to be at least three months before the time limited therefor.”
It is further objected that the complaint of the intervener John Douglas & Co. does not allege any application- made to the quartermaster’s department, or the obtaining of any certified copy of the • bond, or leave to sue. It is objected that the certified copies offered upon the trial date were dated six or eight months after the commencement of the trial.
“That this intervener refers to all the allegations in the original complaint herein, in so far as they are not inconsistent with the foregoing allegations and the claim of this intervener, and makes said allegations part of this complaint.”
The defendant might have been entitled to a bill of particulars as to the paragraphs or allegations referred to. The court does not find any allegations of the complaint inconsistent with the allegation's of the complaint in intervention; nor is any reason perceived why reference may not be made to the original complaint and its allegations adopted as in preceding counts in the same pleading. This intervener’s claim is allowed at $656.30, and interest as above.
The claim of the plaintiff F. T. Crowe & Co. is contested upon the further ground that payments made upon general account were applied, after the controversy arose, so as to reduce other unsecured claims of Crowe & Co. against Rounds & Co., and correspondingly increase its claim against the defendant. The plaintiff Crowe & Co. contends that, in the absence of any plea of payment, this defense should not be considered. Under the issues as framed, there is no merit in this latter contention. The evidence shows that
While the defendant is not able to show the misapplication of any specific credit, yet, in view of the fact that this plaintiff’s claim was originally madé for $1,829.91, and subsequently reduced, on account of a mistake, to $1,653.15, and further on account of the vagueness in the testimony of the witness- Claussen, claimant’s auditor, coupled with the failure to give any satisfactory explanation of a statement produced by plaintiff of a balance on account due May 31, 1910, on account of the Ft. Ward contract of $1,293.88, and taking into' consideration that no materials were purchased from claimant after the above date, the court finds that this plaintiff has no preponderance of evidence showing it entitled to any greater amount 'than that stated, $1,293.88.
The foregoing rulings control in the matter of the claim of the plaintiff Galbraith, Bacon & Co., which is allowed at $3,603.05, with interest as above. The amounts allowed will be further reduced by such dividends as have been realized from the bankruptcy- of Rounds & Co. If there is any dispute concerning these credits, the parties will be further heard.
Findings may be prepared in accordance with the foregoing.