Mr. James B. Murphy, with whom Mr. C.H. Winders and Mr. M.M. Richardson were on the brief, for plaintiff in error: The purpose of Congress in the passage of the act of August 13, 1894, 28 Stat. 278, as amended February 24, 1905, 33 Stat. 811, was to protect, first, the United States, and, second, to protect laborers and materialmen, who had no right of lien by reason of the building or work being upon the property of or belonging to the sovereign, by giving to them a right of action on the contractor's bond, substituting the bond for the building or public work. Hill v. American Surety Co., 200 U.S. 197; U.S.F. G. Co. v. United States, 191 U.S. 416; Sica v. Kimpland, 93 F. 403; American Surety Co. v. Cement Co., 110 F. 717; United States v. Burgdorf, 13 App.D.C. 506; United States v. City Trust Safe Deposit Co., 21 App.D.C. 369; 123 Op. Atty. Genl. 74. The contract in this case was neither for the erection of a "public building" or the prosecution or completion of any "public work," and further, title to the vessel under the contract not passing to the Government until its completion, delivery and acceptance, the laborer and materialman, under the statutes of the State of Washington, were amply protected by its lien laws, hence the claims sought to be enforced here are not only without the terms of the act, but outside of the very scope and intent of Congress in its passage.
The right of plaintiff in error, however, does not depend only on a substitute for a lien but also on the implied agency of the subcontractor for the contractor. Bates v. Santa Barbara, 90 Cal. 543; Kent v. New York Central R. Co., 12 N.Y. 628; Surety Co. v. Cement Co., 110 F. 717; Garrison v. Borio, 61 N.J. Eq. 236. See also Parker v. Gray, 7 Gray, 429.
Royal Indemnity Company v. Young, 225 Ala. 591, 144 So. 532; Universal Electric Construction Company of Alabama v. Robbins, 239 Ala. 105, 194 So. 194; American Casualty Co. of Reading, Pa. v. Devine, 275 Ala. 628, 640, 157 So.2d 661. A surety under a statutory bond, such as a public works bond, contracts only to the extent that the statute prescribes, and anything added beyond the minimum statutory requirements may be rejected as surplusage and is not enforceable against the surety. USF G v. Yielding Brothers Company Department Stores, 225 Ala. 307, 143 So. 176; National Surety Corporation v. American Cement Tile, 226 Ala. 373, 147 So. 158; Hochevar v. Maryland Casualty Company (6th C.A., 1940), 114 F.2d 948; American Casualty Company of Reading, Pa. v. Irvin (5th C.A., 1970), 426 F.2d 647; United States v. C. A. Riffle, Co. (D.C., Pa., 1917), 247 F. 374; United States v. Massachusetts Bonding Insurance Company (6th C.A., 1927) 18 F.2d 203; National Surety Corporation v. Wunderlich, supra; Continental Casualty Company v. Associated Pipe Supply Company (D.C., La., 1969), 310 F. Supp. 1207, 1214, aff. in part, mod. in part, and vac. in part, 5 Cir., 447 F.2d 1041; American Casualty Company v. Board of Education (D.C., Okla., 1964), 228 F. Supp. 843; Fort Smith Structural Steel Company v. Western Surety Company (D.C., Ark., 1965), 247 F. Supp. 674; A public works bond surety is not liable to third parties for torts of the general contractor. United States v. C. A. Riffle Co., supra; United States v. Massachusetts Bonding Insurance Company, supra; Tri-State Insurance Company v. United States (8th C.A., 1965), 340 F.2d 5
There was no waiver of the statute of limitations on the part of either of the defendants below. 17 R.C.L., sec. 243, page 884; 37 C.J., sec. 33, page 726; St. Joseph, etc., R. Co. v. Elwood Co., 203 S.W. 680; Carter v. Canty, 166 P. 346; Kemple v. Ind. Acc. Comn., 171 P. 426; U.S. v. Scheurman, 218 Fed. 915; U.S. v. Boomer, 183 Fed. 726; G. S.I.R. Co. v. Bradley, 110 Miss. 162; National Surety Co. v. American Cement Co., 147 So. 158. The court below committed error in rendering a judgment for appellees in this cause since proper process was not had in that there was no publication of the pendency of this cause in Lowndes county.
271 S.W. 24 (incidentally); U.S. Fidelity G. Co. v. Henderson Co., (Tex.Civ.App.) 253 S.W. 835, 844; National Surety Co. v. U.S., 228 Fed. 577, L.R.A. 1917A 336 (reversed on another point in 246 U.S. 357, 38 Sup. Ct. 250). Incidental repairs have been allowed in American Surety Co. v. Cement Co., 110 Fed. 717; Stryker v. Mercantile Co., (Colo.) 236 P. 993; Fidelity D. Co. v. Hegewald Co., 144 Ky. 790, 139 S.W. 790; Miller v. American Bonding Co., 133 Minn. 336, 158 N.W. 432; French v. Powell, 135 Cal. 636, 68 P. 92.