United States v. Hegeman

Opinion by

W. D. Porter, J.,

We have held, in the case of tjie United States for use of Ancorani v. American Surety Co., No. 141, April term, 1902, that the filing of an affidavit of claim with the department having charge of the work is not, under the provisions of the act of congress, a condition precedent to the use of the name of the United States in an action against the contractor and his surety. This appeal raises that question, but we have nothing to add to what we said in the case referred to.

We have carefully reviewed the evidence and have found nothing to sustain an inference that the plaintiff had any notice or knowledge of any change in the membership of this partnership until long after the course of dealing had been completed. After all the goods had been delivered, and when the officers and attorneys of the plaintiffs were about to bring suit, they, for the first time, received an intimation that there had been a change in the membership of the defendant firm. Notice, in order to be effective to relieve one who was a member of the firm when the course of dealing began,'must have been prior to the time when the plaintiff parted-with his goods. The defendants entered into a contract with the United States for the execution of the work covered by a single contract; they had given the bond required by the act of congress, and their surety had become liable to be called upon to pay for the materials which were furnished to the contractors in the execution of that contract. The plaintiffs had furnished such materials and their right to recover is not to be defeated by merely showing that there had been a change in the persons composing the firm which was the principal contractor, of which change the plaintiffs had no notice until after their goods had been delivered and used.

The judgment is affirmed.