United States ex rel. Kessler v. Title Guaranty & Surety Co.

PER CURIAM. This is an action brought against the defendant in error as surety on a certain bond dated July 14, 1905, given in conformity to the act of Congress of February 24, 1905 (33 Statutes at Large, c. 778, p. 811), for the performance of a contract for the erection of certain public buildings in Laredo, Tex., for which said Kessler [68] & Co. furnished material used in the prosecution of the work. Suit was filed in the court below the 14th day of September, 1909, followed by a first amended original petition filed July 2, 1911, and thereafter by other pleadings not necessary to specify. After issue joined a jury was waived by stipulation in writing. The record shows no reversible error in the rulings of the judge as to the admission or rejection of evidence. On submission of the case general and specific findings were made as to various issues presented by the pleadings and the evidence, and in conclusion the court specifically found as follows: “(6) That the date of final settlement between the United States and the General Supply & Construction Company was on or about the 5th day of August, 1909, and that, as neither the plaintiff herein, T. H. Kessler & Co., nor any of the interveners herein, Joseph Netzer, Oscar Staben, and John O. Buenz, filed their suits against the Title Guaranty & Surety Company within one year from said date of final settlement as aforesaid, they are thereby precluded under the act of Congress of February 24, 1905, from recovering ir> this action, because their said suits were not begun within the time limited, as provided in said act” —and thereupon entered judgment that the plaintiffs and interveners take nothing in the suit and that the Title Guaranty & Surety Company go hence without day. The record shows that there was evidence tending to support the finding above made, and the same is conclusive in this court. See St. Louis v. Rutz, 138 U. S. 226, 241, 11 Sup. Ct. 337, 34 L. Ed. 941; Key West v. Baer, 66 Fed. 440, 13 C. C. A. 572; Lehnen v. Dickson, 148 U. S. 71, 13 Sup. Ct. 481, 37 L. Ed. 373; Runkle v. Burnham, 153 U. S. 216, 225, 14 Sup. Ct. 837, 38 L. Ed. 694. Under the facts as found, the case is controlled by United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, 34 Sup. Ct. 550, 58 L. Ed. 893. The judgment of the District Court is affirmed, with costs.