Opinion
Submitted February 16, 1934 —
Decided April 12, 1934.
On appeal from the Supreme Court. The cause was tried without a jury by Judge Porter, who filed a written decision which, so far as relates to the present appeal, is as follows:
"This case was submitted to the court for determination, without a jury, on an agreed stipulation of facts.
"The facts disclose, briefly, that on June 18th, 1931, the state entered into a building contract with Burns, Lane, Richardson Company. The defendant, Seaboard Surety Company, furnished a bond to the state in accordance with Pamph. L. 1918, ch. 75, which bond provided, among other things, that on default of the contractor to pay lawful claims of subcontractors such claims would be paid by it.
"The plaintiff, Johnson Service Company, is a subcontractor and has a lawful unpaid claim against the contractor of $1,250. Under date of February 3d 1933, the plaintiff furnished the defendant with a written statement showing the amount due it from the contractor in accordance with the provisions of the statute.
"The authority to accept the work vests with the department of institutions and agencies. On November 14th, 1932, this department issued its certificate of final payment and certified to the completion of the work on `November 19th, 1932, as of November 8th, 1932.' This certificate was approved by the director of the division of architecture and construction, by the state board of control and by William J. Ellis, commissioner, all in the department of institutions and agencies, and was endorsed by John McCutcheon, secretary of the state house commission. The date on which Commissioner Ellis affixed his signature is in dispute.
"On November 19th, 1932, Commissioner Ellis accepted the work by letter to the state auditor. In the letter there is this recital: `This work was completed November 8th, 1932, in accordance with the terms of the contract, plans and specifications, and is accepted as of that date.'
"Thereafter, about May of 1933, the records in the comptroller's office were changed and the final certificate above mentioned, dated November 14th, 1932, was altered by lining through the words `as of November 8th, 1932' on a line which formerly read `contract accepted November 19th, 1932, as of November 8th, 1932.' Likewise, in the letter referred to, dated November 19th, 1932, was lined out in the line reading, `This work was completed November 8th, 1932.'
"Under the provisions of the statute ( Pamph. L. 1918, ch. 75, § 3), any claimant for money due on the construction of any building shall notify the surety of such claim `within eighty days after the acceptance thereof by the duly authorized board or officer.'
"The plaintiff seeks to recover the amount of its claim against the contractor from the defendant on its bond of indemnity.
"Recovery must be allowed provided the statutory notice was given the defendant by the plaintiff within eighty days of the acceptance of the work. The only question in the case, then, is as to the actual date of acceptance.
"The department of institutions and agencies is vested with authority to accept the work. It issued a certificate of acceptance under date of November 14th, 1932, signed by the head of the department, Commissioner Ellis, and also approved by other state officials. An examination of this certificate shows it to have been dated on November 14th, 1932, and that it was sworn to by Leslie C. Burns for the contractor on November 15th, 1932. In the body of the certificate, after the words `contract completion,' is typed `November 8th, 1932,' and after the words `contract accepted' is typed `November 19th, 1932, as of November 8th, 1932.'
"The original of the letter of Commissioner Ellis, dated November 19th, 1932, to the state auditor, as above stated, certifies that the work was accepted `as of November 8th, 1932.'
"It may be assumed from these documents, irrespective of the dispute as to the date on which Commissioner Ellis signed the certificate of November 14th, 1932, and of its having been altered later on, that the intention of the department of institutions and agencies as indicated by the executive head of that department, Commissioner Ellis, was to accept the work as of November 8th, 1932.
"The defendant argues that the legal effect of these certificates is an acceptance as of either November 8th or November 14th, and that in either case the statutory notice given by the plaintiff on February 3d would not be within the eighty-day period, and so no recovery can be had. So to hold would be approving the antedating of an acceptance.
"It seems to me that an acceptance must speak as of its date or a future date therein mentioned, and never as of any past date.
"The intention of the commissioner that the date should be November 8th (assuming it was so intended) cannot under the conditions be effective in the absence of his acceptance on or prior to that date. Otherwise, it is obvious that subcontractors would be without adequate notice and could not properly protect themselves by giving the statutory notice of their claims. If a certificate could be antedated as to acceptance six days, it could also be antedated for the entire eighty-day period and so render impossible the giving of notice. The purpose of the statute would thus be defeated.
"I find the fact to be that acceptance was as of November 19th, 1932, * * * the date given in the body of the November 14th certificate as the acceptance date, and also the date on which Commissioner Ellis wrote the state auditor. The words in both the certificate and letter `as of November 8th, 1932,' are of no legal effect.
"The said notice given by the plaintiff to the defendant was thus within the statutory period of eighty days, and a judgment will be entered in favor of the plaintiff for the amount claimed."
For the appellant, Frederick F. Richardson.
For the respondent, Jehiel G. Shipman and Everett M. Scherer.
The judgment will be affirmed, for the reasons expressed in the decision of Judge Porter, supra. For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 16.
For reversal — None.