This is a suit under the Materialmen's Act of 1894, 28 Stat. 278, c. 280, as amended by the Act of 1905, c. 778. It was brought in the name of the United States by Forsberg a materialman, as use plaintiff, in the federal district court for Eastern Virginia, to recover on a bond given by the Fleischmann Construction Company, as contractor, and the National Surety Company, as surety, for the construction, under a contract with the United States, of a torpedo assembly plant in Alexandria. Various materialmen and subcontractors filed intervening petitions in the suit. The plaintiff and the intervenors recovered judgment, 298 F. 320, which was affirmed by the Circuit Court of Appeals, 298 F. 330. This writ of error was allowed in March, 1924. A motion was interposed to dismiss the writ of error upon the ground that the record presents no question properly reviewable by this Court, or to affirm the judgment; the consideration of which was postponed to the hearing on the merits.
The Materialmen's Act, as amended,1 provides that the usual penal bond required of any one entering into a contract with the United States for the construction of any public work, shall contain an additional obligation for the payment by the contractor of all persons supplying labor and materials in the prosecution of the work. Any such person not thus paid may intervene in any action instituted by the United States on the bond and obtain judgment pro rata with other intervenors, subject to the priority of the claim of the United States. If no suit is brought by the United States 'within six months from the completion and final settlement' of the contract, any such person shall have a right of action upon the bond, and may, 'within one year after the performance and final settlement' of the contract, but not later, commence suit against the contractor and his sureties, in the name of the United States, for his use and benefit, in the federal court of the district in which the contract was performed, and prosecute the same to final judgment and execution. 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 is inadequate to pay the amounts due to all of the creditors, judgment shall be given to each pro rata.
The first question to be determined is whether any of the matters presented by the assignment of errors-which relate chiefly to the times at which the suit was brought and the intervening petitions filed-are now open to review upon the record.
Shortly outlined, the proceedings in the case were these: The suit was brought by Forsberg on April 6, 1921. The declaration alleged that the Construction Company entered into a contract with the United States for the construction of the plant and gave bond to secure its performance, in October, 1918; and that this contract 'was completed and final settlement had on' September 25, 1920, 'more than six months and within one year before' the filing of the suit. The intervening petitions, which were filed between June 15 and September 24, 1921, contained substantially the same general averments as the declaration, and alleged further that they were filed 'before the expiration of one year after the completion' of the contract. In December, 1921, the plaintiff, by leave of court, amended the declaration so as to allege that the original contract had been amended by a supplemental contract in May, 1919, and the defendants had thereafter executed an additional bond; and that the contract as amended 'was completed and final settlement had' on September 25, 1920. The intervening petitions were likewise amended so as to incorporate substantially these same averments, and allege further that the petitions were filed 'before the expiration of one year after the completion of said original contract as amended.'
The defendants filed demurrers to the original and amended declaration and petitions. All of these were overruled. And the amended declaration and petitions were then put at issue under pleas filed by the defendants.
By agreement of all the parties the case was referred to a special master to hear the evidence and find the facts. In his report, he found that the work was completed February 5, 1920, and that the date of final settlement was October 1, 1920.
Thereafter, in April, 1923, before action had been taken on this report, the parties filed a written stipulation, under section 649 of the Revised Statutes (Comp. St. § 1587), waiving a jury and agreeing that all the issues might be tried and determined by the court.