207 F. 198 | N.D.N.Y. | 1913
This action was brought by the Proctor Manufacturing Company, in the name of the United States, against Ambrose B., Stannard, contractor with the United States for the construction of a public building (post office building) at Malone, Franklin Co., N. Y., in the Northern district of New York, under the provisions of the act approved August 13, 1894 (28 Stat. 278, c. 280), en
Ambrose' B. Stannard is in bankruptcy, and his trustee, Henry A. Wise, has been brought in as a party defendant. The American Hardware Corporation has duly intervened, setting up and alleging its claim. The Illinois Surety Company, surety on the bond of said Stannard, the'contractor, demurs, to the complaint of the plaintiff on the grounds (1) that the complaint does not state facts sufficient to constitute a cause of action; and (2) that said Proctor Manufacturing Company does not show its capacity to- sue. Said Illinois Surety Company demurs to the complaint of the intervener, American Hardware Corporation, on the ground (1) that Henry A. Wise, such trustee-, is not a party; (2) that said Hardware Corporation does not show its capacity to sue or to be made a party to this action; and (3) that its statement of claim is not sufficient to show a cause of action against the Illinois Surety Company, or to entitle the American Hardware Corporation to share in the benefits of the bond or undertaking set forth in the said statement of claim of said Hardware Corporation. The said Illinois Surety Company also moves to dismiss, on the ground that both the complaint and the intervening complaint show a suit in equity, while this action was brought as an action at law by the service of a summons under the attestation of the Chief Justice of the United States and the-seal of the court, signed by the clerk of this court, and also by the plaintiff’s attorney, as required in bringing actions at law, and not by the service of a subpoena, as required in equity actions.
“IÍ 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 * * * 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 herebsr, 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, * * * 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 when such suit is instituted by any of such creditors on the bond of the contractor it shall not be commenced until after the complete performance of said contract, and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later.”
If the contractor does not fully perform the contract, the government may do so, and settle and adjust the rights of the parties, and it.is only after full performance and settlement of the rights of the parties to thd contract, and after the expiration of six months from
"And your orator further alleges, upon information and belief, that the said Ambrose .Stannard, after the execution and delivery of the said contract and the said undertaking, duly entered upon the performance of liis said contract for the construction of the said post office building and equipment at Malone, and did through himself and his subcontractors furnish the labor and material necessary for the construction of the said post office building, and did erect and construct the said post office building, and did complete the same.
“And upon information and belief that; the work and material so performed and furnished by the said Ambrose B. Stannard was duly accepted by the said United States of America, through its duly constituted officers, and final settlement under said contract and final payment of the contract price by the said United States of America to the said Ambrose B. Stannard was duly authorized on or about the 10th day of October, 1912, and full and final payment of the said contract price was thereupon made to the said Ambrose B. Stannard. * * *
“And your orator further shows and alleges, upon information and belief, that on or about the 10th day of October, 1912, a full a.nd final settlement and payment of the amount due the said Ambrose B. Stannard under Ms said contract with the said United States of America was duly authorized by the proper officers and authorities of the said United States of America, and that he did forthwith receive his final payment in full settlement under said contract with the said United States of America, and more than 00 days have elapsed since ihe final settlement and payment to the said Ambrose B. Stannard, at which time final payment under his contract with the said Proctor Manufacturing Company became due and payable. * * *
“And your orator further shows and alleges that more than six months' time has elapsed since the final settlement and payment by the United States of America to the said Ambrose B. Stannard, and upon information and belief that the said United States of America has commenced no action against, the said Ambrose B. Stannard on any matter growing out of his said contract, or upon the bond or undertaking furnished by him to the said United States of America for the faithful performance of his said contract, dated October 26, 1910, and upon information and belief that no other action has been, commenced against the said Ambrose B. Stannard and the said Illinois Surety Company by any creditor upon the said undertaking hereinbefore mentioned, and that one year has not yet elapsed since the final settlement with the said Ambrose B. Stannard under his said contract with the United States of America.”
It seems to me that here are clear allegations that on or before the 10th day of October, 1912, there had been a full and complete performance of the contract by Stannard, and that on that day there was a full and a final settlement thereof between Stannard and the United States, and a full and final payment to Stannard of the full amount due and to grow due, if any, thereunder, and that more than six months had expired after such performance and settlement, and that neither the United States nor any other person had commenced any action on such contract and bond, and that one year from the date of said complete performance and final settlement and payment had not expired.
In Stitzer v. United States, 182 Fed. 513, 518, 105 C. C. A. 51, 56, it is said:
*202 “If we were to accept the government’s statement that the work was completed March 25, 1909, as meeting the requirements of the statute, it would follow that the suit was timely instituted. But this cannot be done; the language of the act prohibits the commencement of a suit by a creditor, not only, as the plaintiff contends, until.six months from the completion of the contract, but until six months ‘from the completion and final settlement of the contract.’ These terms are not equivalent. They do not mean the same thing. The latter may perhaps by inference be held to include the former, but the former cannot by any fair construction be made to include the latter. Each is an essential prerequisite to the institution of a creditor’s suit. The contract might well be completed, and yet divers disputes and differences exist between the parties, which would require adjustment before final settlement could be made, as in the case at bar.”
Here the complaint alleges that Stannard was to erect the post office building; that he did, and “did complete the same”; and that it was accepted and final settlement and payment under such contract made.
The fact that all subcontractors having unpaid claims may come in and prove their contracts and claims, and establish the amount due them, and share pro rata in the judgment or recovery, does not make the case equitable in its nature, or deprive either party of his or its right to a trial by jury of all issuable facts. The apportionment of the recovery on the claims established by the verdict is a mere matter of computation, and not as intricate a matter as the apportionment of a recovery in case of death by wrongful act, when by statute in some of the states the jury is required to apportion the recovery in unequal amounts among those entitled thereto, as in the case of a widow and children, or children and grandchildren, etc. In United States v. McGee et al. (C. C.) 171 Fed. 209, 212, 213, the learned judge repeatedly refers to what the jury could do, etc., demonstrating his conception that these actions are at law and not in equity. In the numerous cases where this statute has been considered by the United States Supreme Court, the action is always referred to as an action, and never as a suit in equity. The process issued was the proper one, and the Surety Company will be protected against all other suits after judgment in this, into which all claimants must come under the notice authorized by the act.
The demurrers are overruled, and the defendant Illinois Surety Company may have 20 days in which to answer. The motion to dismiss is denied.