
    United States to use, Appellant, v. American Surety-Company
    (No. 2).
    
      Principal and surety — Bond — Suit in name of United Stales — Public works — Demurrage.
    The labor and materials which congress intended to protect by the act of August 13, 1894, p. 236, of supplement to Revised Statutes of the United States, vol. 2, Nos. 1-5, are such as are used directly upon the public work, and do not include demurrage for the detention of a vessel.
    Argued April 28, 1902.
    Appeal, No. 144, April T., 1902, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1901, No. 439, on verdict for plaintiff in case of United States to use of Anchilles Ancorani v. American Surety Company.
    
      July 10, 1902 :
    Before Rice, P. J., Beaver., Orlady, W. W. Porter and W. D. Porter, JJ.
    Affirmed.
    Assumpsit upon a bond of surety.
    For the facts see United States to use v. American Surety Company (No. 1), ante, p. 153.
    
      F. C. McGirr, of Marron & McGirr, for appellant.
    
      A. J. Rose, with him W. S. Thomas, for appellee.
   Opinion by

W. D. Porter, J.,

The plaintiff appeals from the action of the court below in reducing the verdict by the amount of the claim of plaintiff for demurrage therein included. We have reversed the judgment in an opinion this day filed in an appeal by the defendant from the same judgment, but as the case must go back for retrial the question presented by plaintiff’s appeal will again arise. Demurrage is a compensation to the owner for the detention of his vessel beyond the days allowed for loading or unloading; a remuneration for the earnings she is improper^ caused to lose. Plaintiff and Hegeman & Company, the principal contractors, had by their agreement fixed the time to be allowed for unloading each flat at two days after delivery, and covenanted that demurrage at the. rate which.Ancorani paid to the owners for the rental of the flats should be allowed for any delay beyond that period. This was compensation for the use or detention of the flats, and not labor or material which went into the construction of the dam. The labor and materials which congress intended to protect by the Act of August 13, 1894, page 236 of supplement to Revised Statutes of the United States, vol. 2, Nos. 1-5, are such as are used directly upon the public work, and do not include the freight charges on materials carried: United States to use of Sabine & E. T. Railway Company v. Hyatt, 92 Fed. Repr. 442. It was not intended that by force of the act and the bond to be given under it a private individual should have the right to maintain an action in the name of the United States against the surety in the bond for failure to perform a contract, or negligence or delay in such performance. The right of the private individual to recover against the surety is confined to claims for labor and materials which go into the public work. We agree with the learned judge of the court below in holding that the plaintiff could not recover from the surety this particular item of his claim.

The appeal of the plaintiff is dismissed at his cost.  