view, and set it forth in a well reasoned opinion. Elmer v. United States Fidelity & Guaranty Co., D.C., 174 F. Supp. 437. The district court followed and applied the principles announced in Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163.

[1, 2] In the MacEvoy case the claimant had furnished materials to one from whom the prime contractor had purchased them for use on the job. In the MacEvoy case it was held that the claimant could not recover. The appellant here seeks to distinguish the MacEvoy case on the basis of factual differences. The factual difference exists but does not call for a different principle. The language of the MacEvoy opinion furnishes us with a rule for decision here. As is pointed out in the opinion of the district court, MacEvoy holds that a subcontractor, as that term is used in the Miller Act, is one who performs and takes from the prime contractor a specific part of the labor or material requirements of the original contract. Scholes was a subcontractor of Tyler-Hyde. Acme had a direct contractual relation with the subcontractor Scholes and hence would have been covered by the bond. But Acme was not a subcontractor since it performed its work for Scholes rather than for the prime contractor, Tyler-Hyde. Since the appellant was not a subcontractor within the meaning of the Miller Act and did not have a direct contractual relationship with a subcontractor, he cannot recover. As said in MacEvoy, "To allow those in more remote relationships to recover on the bond would be contrary to the clear language of the proviso and to the expressed will of the framers of the Act." 322 U.S. 102, 108, 64 S.Ct. 890, 894.

The conclusions we have reached are in accord with United States for Use and Benefit of W. J. Halloran, etc. v. Frederick Raff Co., 1 Cir., 1959, 271 F.2d 415; Basich Bros. Const. Co. v. United States, 9 Cir., 1946, 159 F.2d 182, and United States for Use and Benefit of Newport, etc. v. Blount Brothers Construction Co., D.C. Md. 1958, 168 F. Supp. 407. McGregor Architectural Iron Co. v. Merrit-Chapman & Scott Corporation, D.C.M.D. Pa. 1957, 150 F. Supp. 323, is contra and seemingly stands alone.

The judgment of the district court is

Affirmed.

RIVES, Chief Judge (specially concurring).

As I read Clifford F. MacEvoy Co. v. United States, 1944, 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163, it held simply that a materialman is not a "subcontractor" within the meaning of the proviso to 40 U.S.C.A. § 270b, which is very different from the issue presented in this case, viz., whether a subcontractor several times removed, a "sub-sub-subcontractor," is such a "subcontractor."

prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorised by law to serve summons," 49 Stat. 794, 40 U.S.C.A. § 270b (a).

While I recognize that the dominant purpose of the Miller Act was to ameliorate certain procedural difficulties in the Heard Act and to permit a more prompt recovery under the payment bond, the legislative history cited in the following part of the MacEvoy opinion compels me to conncur with the judgment of affirmance in this case:

"The proviso of Section 2(a), which had no counterpart in the Heard Act, makes clear that the right to bring suit on a payment bond is limited to (1) those materialmen, laborers and subcontractors who deal directly with the prime contractor and (2) those materialmen, laborers and subsubcontractors who, lacking express or implied contractual relationship with the prime contractor, have direct contractual relationship with a subcontractor and who give the statutory notice of their claims to the prime contractor. To allow those in more remote relationships to recover on the bond would be contrary to the clear language of the proviso and to the expressed will of the framers of the Act. Moreover it would lead to the absurd result of requiring notice from persons in direct contractual relationship with a subcontractor but not from more remote claimants.

"'A sub-subcontractor may avail himself of the protection of the bond by giving written notice to the contractor, but that is as far as the bill goes. It is not felt that more remote relationships ought to come within the purview of the bond.' H. Rep. No. 1263 (74th Cong., 1st Sess.), p. 3." 322 U.S. 102, 107-108, 64 S. Ct. 890, 894. Somewhat reluctantly I concur.

NOTES

1. In McGregor Architectural Iron Co. v. Merritt-Chapman & Scott Corp., 150 F. Supp. 323 (M.D. Pa. 1957), the defendant was awarded a Government construction contract and, pursuant to the Miller Act, obtained a surety bond for the protection of “all persons supplying labor and material in the prosecution of the work provided for in said contract." The defendant subcontracted a portion of the work under the prime contract to R. R then subcontracted a portion of that work to E who then subcontracted a portion of the work under his subcontract to the plaintiff. The plaintiff was not paid for the work done and, after giving proper notice, brought an action against the defendant on the payment bond. The defendant's motion to dismiss was denied.

"In the instant case, the plaintiff, the third subcontractor, performed two contracts, one for the erection of a bunker, the other for the erection of a stiff leg post and three bridle posts, both of which were an actual part of the *** job and were performed on the site by the plaintiff. It seems to me that plaintiff certainly qualifies under the wording of the MacEvoy case as one of 'the relatively few subcontractors who perform part of the original contract' and who accordingly 'represent in a sense the prime contractor and are well known to him.' The plaintiff was not 'an ordinary material man.'

"I find nothing in the Act which would preclude a subcontractor actually performing on the site an integral part of the main contract which was the responsibility of the prime contractor from the beneficent provisions of this Act. As a matter of fact, a study of the legislative history of this Act taken with the expressed view of the Supreme Court in the MacEvoy case that it is to be given a liberal interpretation, convinces me that this third

subcontractor plaintiff is within the group entitled to protection under he

Act."

2. If a materialman or subcontractor is protected by the payment bond, an action may be "brought in the name of the United States for the use of the person suing" in the "United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy. ***" 40 U.S.C. § 270(b) (1958). Certain conditions are attached to this remedy. Unpaid persons dealing directly with the contractor have no right of action "before the expiration of a period of ninety days after the day on which the last of the labor was done or performed or material was furnished or supplied *** for which such claim is made." 40 U.S.C. § 270b (1958). Once the right arises, suit must be commenced before the expiration of one year after the "day on which the last of the labor was performed or material was supplied. * * *” 73 Stat. 279 (1959), 40 U.S.C.A. § 270b (b) (Supp. 1960).

Persons having a direct contractual relationship with a subcontractor but not the contractor must give written notice to the contractor "wihin ninety days from the date on which such person" performed the last labor or supplied the last materials. This notice must evidence an intent to make a claim and state "with substantial accuracy" the amount claimed and the person for whom the work was done. See United States v. Thompson Constr. Corp., 273 F.2d 873 (2d Cir. 1959).

3. Two recent decisions on the 90 day notice requirement are worthy of note. In Noland Co. v. Allied Contractors, 273 F.2d 917 (4th Cir. 1959), a second-tier materialman supplied a subcontractor under a series of purchase orders. All materials furnished were used by the subcontractor to perform a single prime contract. The unpaid materialman gave written notice to the contractor within 90 days after the last delivery but more than 90 days after the first delivery had been made. The court held that the materialman was protected under all of the purchase orders: the requirement of a direct contractual relationship be tween the plaintiff and a subcontractor was satisfied by a series of single orders under a continuous contractual arrangement if the materials were used for a single prime contract and a written notice was given within 90 days of the last delivery. Accord: United States v. Bregman Constr. Corp., 172 F. Supp. 517 (E.D.N.Y. 1959), DA Pam 715-50-2, page 271, paragraph 7. But in J. A. Edwards v. Peter Reiss Constr. Co., 273 F.2d 880 (2d Cir. 1959), the Noland rule was limited to this extent: if more than 90 days elapse between any two orders in the series, the orders which precede the gap are not protected by the payment bond even though a written notice is given within 90 days of the last order.

C) The Government

COTTON v. UNITED STATES

52 U.S. (11 How.) 228 (1850)

Mr. Justice GRIER delivered the opinion of the court.

This is an action of trespass quare clausum fregit brought by the United States against Loftin Cotton, in which he is charged with cutting and carrying away a large number of pine and juniper trees from the lands of plaintiff.

On the trial below, the counsel for defendant requested the court to instruct the jury, 1st. "That the only remedy for the United

States for cutting pine timber on the public lands was by indictment." 2d. "That the United States have no common law remedy for private wrongs." The refusal by the court to give these instructions is now alleged as error.

Every sovereign State is of necessity a body politic, or artificial person, and as such capable of making contracts and holding property, both real and personal. It is true, that, in consequence of the peculiar distribution of the powers of government between the States and the United States, offences against the latter, as a sovereign, are those only which are defined by statute, while what are called common law offences are the subjects of punishment only by the States and Territories within whose jurisdiction they are committed. But the powers of the United States as a sovereign, dealing with offenders against their laws, must not be confounded with their rights as a body politic. It would present a strange anomaly, indeed, if, having the power to make contracts and hold property as other persons, natural or artificial, they were not entitled to the same remedies for their protection. The restraints of the Constitution upon their sovereign powers cannot affect their civil rights. Although as a sovereign the United States may not be sued, yet as a corporation or body politic they may bring suits to enforce their contracts and protect their property, in the State courts, or in their own tribunals administering the same laws. As an owner of property in almost every State of the Union, they have the same right to have it protected by the local laws that other persons have. As was said by this court in Dugan v. United States, 3 Wheat. 181, "It would be strange to deny them a right which is secured to every citizen of the United States." In the United States v. The Bank of the Metropolis, 15 Peters 392, it was decided that when the United States, by their authorized agents, become a party to negotiatable paper, they have all the rights and incur all the responsibilities of other persons who are parties to such instruments. In the United States v. Gear, 3 Howard 120, the right of the United States to maintain an action of trespass for taking ore from their lead mines was not questioned.

Many trespasses are also public offences, by common law, or are made so by statute. But the punishment of the public offence is no bar to the remedy for the private injury. The fact, therefore, that the defendant in this case might have been punished by indictment as for a public offence, is no defense against the present action. Whether, if he had actually been indicted and amerced for this trespass in a criminal prosecution in the name of the United States, such conviction and fine could be pleaded in bar to a civil action by the

same plaintiff, is a question not before us in this case, and is therefore not decided.

The judgment of the District Court is therefore affirmed.

NOTE

28 U.S.C. § 1345 (1958): "Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."

DUGAN & MCNAMARA, INC. v. UNITED STATES

124 F. Supp. 650 (Ct. Cl. 1954)

LITTLETON, Judge.

Plaintiff brought this suit to recover $93,312.07 alleged to be due for services furnished the defendant during the period January to May 1947 under stevedoring contracts with the Army. The case is now before the court on plaintiff's motion to dismiss defendant's counterclaims.

Defendant admits that $93,033.04 has been earned by plaintiff under the 1947 contracts but alleges in its answer that full payment has been made to plaintiff by offsetting against that sum plaintiff's alleged indebtedness to defendant which arose out of prior contracts between the parties. Defendant has set forth in its answer to plaintiff's petition six counterclaims, all of which arose in connection with stevedoring contracts between plaintiff and the Army or War Shipping Administration during the years 1944-45.

The first four counterclaims rest on the common law right to recover over-payments charged by plaintiff and other contract damages alleged to have been sustained by defendant on these prior contracts. The total amount claimed in these first four counterclaims is $105,571.28. The fifth represents a claim against plaintiff under the False Claims Statute, 31 U.S.C.A. § 231, alleging fraud on plaintiff's part relative to the alleged over-payments. The liability assessed by that statute is double the amount of the actual damages sustained plus $2,000 for each act committed in violation of the statute. The sixth counterclaim rests on the identical premise with the same measure of damages as the fifth except that the fraudulent acts are alleged to be comprehended within the provisions of Section 19 (c) (1) of the Contract Settlement Act of 1944, 58 Stat. 667, which now appears as Section 119 of Title 41 of U.S.C.A.

Plaintiff has moved to dismiss these counterclaims on three grounds: (1) The court lacks jurisdiction over all the counterclaims since the causes of action upon which they are based accrued more than six years before either the filing of the petition or the filing of the counter