The opinion of the court was delivered by: GESELL
This is an action under Title I, Sec. 804 of the District of Columbia Code, to recover payment in the sum of $11,800, plus interest, for work, labor and materials. The controversy involves a contract between the defendant Edrow and the District of Columbia, dated June 30, 1964, for improvements at the National Zoological Park, Phase II. Defendant Aetna was surety on the bond for $369,000. Berrall-Jasper Fence Company was a subcontractor under a subcontract with Edrow dated November 9, 1964, for certain fence work required by the job.
The case was fully tried on the merits. An attack was made on the jurisdiction of the Court to hear this controversy which requires a careful review of the procedure followed in initiating this suit.
"I represent the Berrall-Jasper Fence Company, a subcontractor to Edrow Engineering Company, Inc. who is the prime contractor with the District of Columbia under the abovelisted contract for Improvements to the National Zoo, Phase II.
"More than six months have elapsed since the acceptance of the work performed by my client and no suit has been filed by the District of Columbia in this regard. At this time, therefore, I am attaching the affidavit of Mr. Jones D. Jasper and requesting that you furnish a certified copy of the contract and bond for Edrow Engineering in order that my client may pursue this action in accordance with Sec. 1-804, D.C. Code.
"Thank you for your prompt consideration of this application."
On April 26, 1966, the Commissioners responded by form letter, furnished the Performance and Payment Bond and stated: "If we can assist you in any other way, please do not hesitate to contact us." (Pl.Ex. No. 12.) A certified copy of the contract was not transmitted because counsel for plaintiff, on learning of the cost of certification, determined the expense not justified and the contract unnecessary to the prosecution of plaintiff's case.
The evidence showed that on September 28, 1965, Edrow, in requesting a small progress payment, certified that the job was 99.9 percent completed and the Project Inspector and Area Engineer certified and endorsed the request as of October 1, 1965. It is stipulated and agreed between the parties that final settlement between the District of Columbia and Edrow occurred on September 1, 1967. See, generally, District of Columbia for Use and Benefit of James McHugh Construction Co. v. Rodney, D.C., 219 F. Supp. 192 (1963); United States Casualty Co. v. District of Columbia to Use of North American Cement Corporation, 71 App.D.C. 92, 107 F.2d 652 (1939).
"4. Said contract between Edrow Engineering Company, Inc. and the District of Columbia has been completely performed and final settlement thereon has been accomplished between those parties."
Defendants' answer denied this allegation. Defendants, in answering the complaint, also set out a Fourth Defense, to wit:
"Since the project has not been approved by the District of Columbia, the right of action, if any, of ...