ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT TO NEW YORK
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney, McReynolds
MR. JUSTICE McKENNA delivered the opinion of the court.
The United States, suing for the use of the Alexander Bryant Company, plaintiff in error, was plaintiff in the court below, and the defendants in error defendants.
The complaint alleged the following facts: the New York Steam Fitting Company, entered into a contract with the United States for the mechanical equipment of the New York Custom House at New York. It gave bond for the faithful performance of its contract with defendant in error. The Title Guaranty and Surety Company as surety. One of the conditions of the bond was that the Steam Fitting Company would, among other things, promptly make payment to all persons supplying its labor and material in the prosecution of the work contemplated by the contract of the Steam Fitting Company with the United States.
The bond was accepted and the work undertaken and duly completed on or about February 19, 1908, the Alexander Bryant Company having, in pursuance of a contract with the Steam Fitting Company, furnished all the materials and performed all of the work, upon which there is a balance due to the Bryant Company of $5,431.18. Under the terms of the agreement between it and the Steam Fitting Company it should have been paid as the Government paid the former, and as final payment was made by the Government February 15, 1908, interest is demanded.
No action, it is alleged, had been brought by the United States against defendant within six months after, nor had one year elapsed since, the performance and final settlement
of the contract by the New York Steam Fitting Company prior to the commencement of this action.
It is alleged that in pursuance of the requirements of the act of Congress of August 13, 1894, c. 280, 28 Stat. 278, as amended February 24, 1905, c. 778, 33 Stat. 811, under and by virtue of which this action is brought, complainant served personal notice of the pendency of this action upon all known creditors, informing them of their right to intervene as the court might order, and in addition thereto published the notice in a newspaper of general circulation in the city, county and State of New York for three successive weeks, the last publication of which was three months before the time limited therefor as in the acts of Congress provided.
A bill of particulars was furnished defendants, of which the following is a copy:
"The plaintiff as and for a Bill of Particulars, demanded by The Title Guaranty & Surety Company herein, avers:
"That pursuant to the requirements of the Acts of Congress under which this action is brought, the plaintiff herein made personal service of Notice of the Pendency of this action upon all known creditors of the New York Steam Fitting Company, as follows: --
"On Messrs. Peet and Powers, November 21st, 1908, on Hermann & Grace, November 21st, 1908, on Henry R. Worthington, November 19th, 1908, on John Simmons Company, November 20th, 1908, on Cutler Hammer Company, November 19th, 1908, on Rob't A. Keasby Co., November 20th, 1908.
"That under date of November 21st, 1908, Messrs. Hardy & Shellabarger, attorneys for New York Steam Fitting Company and The Title Guaranty & Trust Company of Scranton, Penna. (now The Title Guaranty & Surety Company) stipulated with the attorney for the plaintiff as follows: --
"'It is hereby consented on the part of the defendants
that defendants waive any failure on the part of the plaintiff to notify creditors under the third proviso of the Statute, provided no more such notices are sent.'
"That on the 5th day of November, 1908, and on each day thereafter to and including November 25th, 1908, there was published in the New York Press of New York City, New York, a notice of the pendency of this action, addressed to all known creditors of the defendant, the New York Steam Fitting Company.
"Attached hereto and forming a part of this Bill of Particulars is a copy of the form in which personal notice of the pendency of this action was served upon all known creditors of the New York Steam Fitting Company, and a copy of the notice which was ...