THOMAS, Circuit Judge.
This is an action brought by appellee against appellant, the surety on a bond executed by the Hardaway Contracting Company as principal and running to the State of Alabama as obligee. The appellee, a subcontractor on an Alabama road construction project, seeks recovery from the surety for an unpaid balance alleged to be due for labor and materials furnished to the Hardaway Company, general contractor for the project. Judgment was entered in favor of the appellee for the amount of his claim, $4,848.41, with interest and costs. This appeal followed.
The appellant contends (1) that the district court of Minnesota did not have jurisdiction of the subject matter of the action; (2) that appellant’s contractual liability to subcontractors had expired long prior to the commencement of this action; (3) that there was an accord and satisfaction of the claim sued on between appellee and the principal on the bond; (4) that the proof does not support the claim on the merits; and (5) that the court erred in the admission of evidence. Since we conclude that the liability of the appellant, as surety, to subcontractors had expired before the suit was begun, it will be unnecessary to extend this opinion with a discussion of all the issues. The controversy in respect of appellant’s obligation centers upon the proper construction of the bond and two statutes of the State of Alabama.
The bond in suit was executed by the principal and surety in December, 1933, pursuant to Laws of Alabama, 1927, Sec[623]*623tion 28 of Act 347, hereinafter referred to as to the 1927 Act. By virtue of the 1927 Act the Hardaway Company was required to give the bond to secure the performance of its contract with the State of Alabama for the construction of a road. In accordance with the Act the bond was conditioned not only for the protection of the state but also for the use and benefit of all persons supplying the principal with labor, materials, feedstuffs or supplies. Such persons were given a right of action in their own name on certain conditions prescribed in the Act. The pertinent provisions of the 1927 Act1 and the relevant conditions of the bond2 are copied in the margin.
[624]*624During the period from January to June, 1934, the appellee, in accordance with his contract with the Hardaway Company, performed certain grading operations and furnished certain materials used in the construction of the road! His portion of the work was substantially completed in June, 1934, and his forces were withdrawn from the project. In 1934 the appellee received from the Hardaway Company payments on account for the work and materials. In the early part of 1935 a dispute arose between the parties- as to the total amount of the labor and materials contributed by appellee, Hardaway contending that a portion of the grading claimed by appellee had in fact been done by another subcontractor on the project and the appellee contending that his forces had performed it. Following the final completion of the road and the receipt by the Hardaway Company in April, 1935, of the last payment from the State of Alabama, Hardaway forwarded two checks to the appellee in the amounts of $9,897.26 and $212.45. On August 6, 1935, the appellee informed appellant by letter that he was depositing the checks for collection but that he did not accept them as payment in full of the amount due under his contract. The sums received were credited by the appellee on his account with the Hardaway Company.
Having been unable to adjust his differences with the Hardaway Company the appellee commenced this action against the appellant in the district court of Minnesota on April 14, 1936.
It will be noted that Section 28 of the 1927 Act, supra, provides “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; * * * all actions against the surety, as provided under this section, must be commenced within sixty days after the complete performance of said contract and final settlement thereof.” The parties agree that the road was completed and that “final settlement” occurred on April 15, 1935, the date that the final estimate by the Alabama State Highway Commission of the total work done and amount due the Hardaway Company received the approval of the Comptroller and Governor of that state. Under the 1927 Act, therefore, the appellee had 60 days after April 15, 1935, in which to bring his action against the surety, and it is clear that if the limitation contained in that Act is controlling this action commenced on April 14, 1936, was not timely begun.
The appellee contends, however, that the limitation contained in Section 28 of the 1927 Act does not govern this action in view of the fact that this section was expressly repealed by the Alabama legislature by an Act effective'February 8, 1935, hereinafter referred to as the 1935 Act. Chapter 53A, Article 2, Section 2931(9), Supp., Alabama Code of 1928. The pertinent portion of the 1935 Act, p. 70, which was- in effect at the time that appellee’s right'of action accrued, is set forth in the margin.3
[625]*625Since the 1935 Act provides that suits by creditors on contractor’s bonds “shall be commenced not later than one year from the date of final settlement of said contract”, the appellee’s action, filed one day less than a year from that date, is timely if the limitation period of the 1935 Act is controlling.
Except in the repealing section the 1935 Act does not refer to the 1927 Act and its terms do not purport to be applicable to bonds executed under the earlier Act. The limitation period provided in the 1935 Act and the other provisions relative to creditors’ suits all purport to be applicable solely to bonds executed in conformity with the 1935 Act. The appellee contends that if the 1935 Act is not controlling, actions on bonds executed pursuant to the 1927 Act must be governed by the general six-year limitation applicable to actions upon contract in the State of Alabama. Alabama Code 1928, Section 8944. He further contends that the limitation period of the 1927 Act relates solely to the remedy for the enforcement of the obligation of the bond and that as such the Alabama legislature may change the period for bringing actions on the bond at will, so long as the bar has not fallen. Home Building & L. Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481; Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 23 S.Ct. 234, 47 L.Ed. 249; National Surety Company v. Architectural Decorating Company, 226 U.S. 276, 33 S.Ct. 17, 57 L.Ed. 221; Davis v. Sugg, 215 Ala. 93, 109 So. 745.
We are of the opinion that neither the one-year limitation contained in the 1935 Act nor the six-year limitation on actions on contract is applicable to actions on bonds executed pursuant to the 1927 Act.
In Alabama v. Southern Surety Co., 1930, 221 Ala. 113, 127 So. 805, the Supreme Court of Alabama held that the Alabama Act of 1927, p. 356, § 28, supra, was substantially an adoption of the parent federal Act, c. 778, 33 Stat. 811, 40 U.S.C.
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THOMAS, Circuit Judge.
This is an action brought by appellee against appellant, the surety on a bond executed by the Hardaway Contracting Company as principal and running to the State of Alabama as obligee. The appellee, a subcontractor on an Alabama road construction project, seeks recovery from the surety for an unpaid balance alleged to be due for labor and materials furnished to the Hardaway Company, general contractor for the project. Judgment was entered in favor of the appellee for the amount of his claim, $4,848.41, with interest and costs. This appeal followed.
The appellant contends (1) that the district court of Minnesota did not have jurisdiction of the subject matter of the action; (2) that appellant’s contractual liability to subcontractors had expired long prior to the commencement of this action; (3) that there was an accord and satisfaction of the claim sued on between appellee and the principal on the bond; (4) that the proof does not support the claim on the merits; and (5) that the court erred in the admission of evidence. Since we conclude that the liability of the appellant, as surety, to subcontractors had expired before the suit was begun, it will be unnecessary to extend this opinion with a discussion of all the issues. The controversy in respect of appellant’s obligation centers upon the proper construction of the bond and two statutes of the State of Alabama.
The bond in suit was executed by the principal and surety in December, 1933, pursuant to Laws of Alabama, 1927, Sec[623]*623tion 28 of Act 347, hereinafter referred to as to the 1927 Act. By virtue of the 1927 Act the Hardaway Company was required to give the bond to secure the performance of its contract with the State of Alabama for the construction of a road. In accordance with the Act the bond was conditioned not only for the protection of the state but also for the use and benefit of all persons supplying the principal with labor, materials, feedstuffs or supplies. Such persons were given a right of action in their own name on certain conditions prescribed in the Act. The pertinent provisions of the 1927 Act1 and the relevant conditions of the bond2 are copied in the margin.
[624]*624During the period from January to June, 1934, the appellee, in accordance with his contract with the Hardaway Company, performed certain grading operations and furnished certain materials used in the construction of the road! His portion of the work was substantially completed in June, 1934, and his forces were withdrawn from the project. In 1934 the appellee received from the Hardaway Company payments on account for the work and materials. In the early part of 1935 a dispute arose between the parties- as to the total amount of the labor and materials contributed by appellee, Hardaway contending that a portion of the grading claimed by appellee had in fact been done by another subcontractor on the project and the appellee contending that his forces had performed it. Following the final completion of the road and the receipt by the Hardaway Company in April, 1935, of the last payment from the State of Alabama, Hardaway forwarded two checks to the appellee in the amounts of $9,897.26 and $212.45. On August 6, 1935, the appellee informed appellant by letter that he was depositing the checks for collection but that he did not accept them as payment in full of the amount due under his contract. The sums received were credited by the appellee on his account with the Hardaway Company.
Having been unable to adjust his differences with the Hardaway Company the appellee commenced this action against the appellant in the district court of Minnesota on April 14, 1936.
It will be noted that Section 28 of the 1927 Act, supra, provides “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; * * * all actions against the surety, as provided under this section, must be commenced within sixty days after the complete performance of said contract and final settlement thereof.” The parties agree that the road was completed and that “final settlement” occurred on April 15, 1935, the date that the final estimate by the Alabama State Highway Commission of the total work done and amount due the Hardaway Company received the approval of the Comptroller and Governor of that state. Under the 1927 Act, therefore, the appellee had 60 days after April 15, 1935, in which to bring his action against the surety, and it is clear that if the limitation contained in that Act is controlling this action commenced on April 14, 1936, was not timely begun.
The appellee contends, however, that the limitation contained in Section 28 of the 1927 Act does not govern this action in view of the fact that this section was expressly repealed by the Alabama legislature by an Act effective'February 8, 1935, hereinafter referred to as the 1935 Act. Chapter 53A, Article 2, Section 2931(9), Supp., Alabama Code of 1928. The pertinent portion of the 1935 Act, p. 70, which was- in effect at the time that appellee’s right'of action accrued, is set forth in the margin.3
[625]*625Since the 1935 Act provides that suits by creditors on contractor’s bonds “shall be commenced not later than one year from the date of final settlement of said contract”, the appellee’s action, filed one day less than a year from that date, is timely if the limitation period of the 1935 Act is controlling.
Except in the repealing section the 1935 Act does not refer to the 1927 Act and its terms do not purport to be applicable to bonds executed under the earlier Act. The limitation period provided in the 1935 Act and the other provisions relative to creditors’ suits all purport to be applicable solely to bonds executed in conformity with the 1935 Act. The appellee contends that if the 1935 Act is not controlling, actions on bonds executed pursuant to the 1927 Act must be governed by the general six-year limitation applicable to actions upon contract in the State of Alabama. Alabama Code 1928, Section 8944. He further contends that the limitation period of the 1927 Act relates solely to the remedy for the enforcement of the obligation of the bond and that as such the Alabama legislature may change the period for bringing actions on the bond at will, so long as the bar has not fallen. Home Building & L. Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481; Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 23 S.Ct. 234, 47 L.Ed. 249; National Surety Company v. Architectural Decorating Company, 226 U.S. 276, 33 S.Ct. 17, 57 L.Ed. 221; Davis v. Sugg, 215 Ala. 93, 109 So. 745.
We are of the opinion that neither the one-year limitation contained in the 1935 Act nor the six-year limitation on actions on contract is applicable to actions on bonds executed pursuant to the 1927 Act.
In Alabama v. Southern Surety Co., 1930, 221 Ala. 113, 127 So. 805, the Supreme Court of Alabama held that the Alabama Act of 1927, p. 356, § 28, supra, was substantially an adoption of the parent federal Act, c. 778, 33 Stat. 811, 40 U.S.C. § 270, 40 U.S.C.A. § 270, and that the Alabama legislature must be deemed to have adopted the authoritative interpretations of the federal Act. The federal courts have held that the limitations contained in the federal Act are limitations upon the liability itself and not merely upon the remedy for its enforcement. United States ex rel. Texas Cement Co. v. McCord, 1914, 233 U.S. 157, 34 S.Ct. 550, 58 L.Ed. 893; United States v. Boomer, 1910, 8 Cir., 183 F. 726; Eberhart v. United States, 1913, 8 Cir., 204 F. 884, 891. In Texas Cement Co. v. McCord, supra, the court stated [233 U.S. 157, 34 S.Ct. 552, 58 L.Ed. 893]; “The statute thus creates a new liability and gives a special remedy for it, and upon well-settled principles the limitations upon such liability become a part of the right conferred, and compliance with them is made essential to the assertion and benefit of the liability itself.”
In construing the Alabama Act of 1927 we are bound to follow the decision of the Alabama Supreme Court in Alabama v. Southern Surety Co., supra, and place the same interpretation on that Act as is placed on the federal Act by the federal courts. Burns Mortgage Co. v. Fried, 292 U.S. 487, 493, 494, 54 S.Ct. 813, 78 L.Ed. 1380. It follows that the sixty-day limitation contained in the 1927 Act became a limitation on the obligation of the surety on bonds executed pursuant to that Act. The subsequent enactment of the 1935 Act and the repeal of the 1927 Act in no wise affected that obligation. See United States Fidelity Co. v. United States for Use and Benefit of Struthers Wells Co., 209 U.S. 306, 28 S.Ct. 537, 52 L.Ed. 804; Coombes v. Getz, 285 U.S. 434, 52 S.Ct. 435, 76 L.Ed. 866; Cameron v. United States, 231 U.S. 710, 720, 34 S.Ct. 244, 58 L.Ed. 448; United States v. Schofield Co., C.C.E.D.Pa., 182 F. 240, affirmed in Title Guaranty & Surety Co. v. United States, 3 Cir., 187 F. 98.
It is argued with much ability that appel-lee’s cause of action is not purely statutory; that it does not arise upon the statute, but upon the contractual liability created in pursuance of the statute; and that, although the Contract derives its being from [626]*626the statute, the former immediately acquires an independent existence competent to survive the destruction of the statute. Coombes v. Getz, 285 U.S. 434, 442, 52 S.Ct. 435, 76 L.Ed. 866. The rule thus stated is in part applicable, but it does not support appellee’s contention. The contract as actually made is in fact competent to survive the destruction of the statute. Since the statute created a new liability and must, therefore, be read into the contract the surety’s contract was to pay, if its principal did not, the claims of the subcontractors, “Provided, that all actions against the surety * * * must be commenced within sixty days after complete performance of said [construction] contract and final settlement thereof.” This provision of the contract survived the repeal of the 1927 Act and was not affected by the 1935 Act. Eberhart v. United States, supra, and cases cited above.
Since this action was commenced after the obligation of the bond had expired the judgment of the district court must be and it is reversed, and the cause remanded for further proceedings consistent with this opinion.