The opinion of the court was delivered by: YOUNGDAHL
This is an action against a contractor and the contractor's surety brought on the contractor's bond pursuant to Title 1, Section 804 of the District of Columbia Code, which authorizes suits in the name of the District of Columbia for the use and benefit of laborers and materialmen under contracts with the District of Columbia for the construction of any public building or public work. A number of laborers and materialmen filed claims, all but one of which have been settled or otherwise disposed of.
Defendants have moved for summary judgment against the remaining materialman, Noland Co., Inc., on the ground that Noland's intervention came too late and is barred by the statute of limitations set out in section 1-804 of the D.C.Code.
The statute gives the District of Columbia six months 'from the completion and final settlement' of the main contract to bring an action in its own name. If no such suit is brought within that time period,
'then the person or persons supplying the contractor with labor and materials shall, upon application therefor, and furnishing affidavit to the District of Columbia that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall be, and are hereby, authorized to bring suit in the name of the District of Columbia in the United States District Court for the District of Columbia, irrespective of the amount in controversy in such suit, and not elsewhere for his or their use and benefit, against said contractor and his sureties, and to prosecute the same to final judgment and execution: Provided, That where suit is instituted by any of such creditors on the bond of the contractor it shall not be commenced until after the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later * * *.' § 1-804, D.C.C. (Emphasis added.)
The sole issue raised in the motion of defendants for summary judgment is whether the motion of Noland Co. to intervene, filed on October 20, 1961 (and granted by the court on October 31, 1961), came 'within one year after the performance and final settlement' of the contract between the defendant B. F. Rodney Co. and the District of Columbia. Defendants concede that for purposes of the statute of limitations, October 20, 1961, is the date on which plaintiff-intervenor commenced its action.
The dispute depends upon whether the statute of limitations began to run on September 9, 1960, at which time the Director of the Department of Buildings and Grounds of the District of Columbia 'accepted' all the work performed under the contract, or on January 21, 1961, when the same public official 'approved' the final voucher for payments owing to the contractor. If September 9, 1960, is the appropriate date under the statute, then defendants' motion for summary judgment must be granted. If January 21, 1961, is the proper date under the statute, then defendants' motion must be denied.
The duties of James A. Blaser, Director of the Department of Buildings and Grounds, at all times relevant to this motion, are set forth in an affidavit. In his position,
'he determines, authorizes and signs all awards of contracts within his Department subject to approval of the contracts by the Board of Commissioners (;) * * * he finally determines, authorizes and signs all notices to proceed on said contracts(;) * * * he finally determines, authorizes and signs all final acceptances under said contracts(;) * * * he finally determines, authorizes and signs all final payments under said contracts.'
On December 14, 1960, Blaser wrote the following letter to defendant B. F. Rodney Co.:
'Re: Contract No. 18652 Construction of Tenley-Friendship Branch Library 'Subj: Final Acceptance 'Gentlemen:
'All work performed under the referenced contract having been duly inspected and found to have been completed is hereby accepted as of September 9, 1960.
'Appropriate action is being taken to expedite final payment for the work performed.'
In an affidavit prepared for this case, Blaser says that this letter is evidence that 'it was determined by him * * * that the contract was performed, completed and accepted, on September 9, 1960, and that, so far as the Department of Buildings and Grounds was concerned, final payment under the contract was due.'
On January 11, 1961, the Department of Buildings and Grounds prepared a 'voucher for miscellaneous payments' which is marked 'final.' This 'voucher' indicates the final amount owing to defendant B. F. Rodney Co. under the contract. It indicates the amounts previously paid, the amounts owing, and certain 'change orders,' at least four of which are dated in the months of December, 1960, and January, 1961. This 'final voucher' was signed by the vicepresident of B. F. Rodney Co. on January 19, 1961, on which date he also executed a final release. On January 21, 1961, Blaser 'approved' the final voucher as the 'Director of Buildings and Grounds' and 'Contracting Officer.' On January 31, 1961, the voucher was paid by check. In another affidavit prepared for this case, Blaser says that this 'voucher for miscellaneous payments' is 'the final voucher in connection with settlement of the obligations of the District of Columbia ...