United States v. Carter, 14703.

Citation229 F.2d 645
Decision Date10 January 1956
Docket NumberNo. 14703.,14703.
PartiesUNITED STATES of America FOR the Benefit and on Behalf of Harry SHERMAN, Chas. Robinson, Ronald D. Wright, Stuart Scofield, Lee Lalor, William Ames, Ernest Clements, Carl Lawrence, Gordon Pollock and Harold Sjoberg, as Trustees of the Laborers Health and Welfare Trust Fund for Northern California, Appellants, v. Donald G. CARTER, Individually; Donald G. Carter, Doing Business as Carter Construction Company, Carter Construction Company and Hartford Accident and Indemnity Co., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Charles P. Scully, Gardiner Johnson, Thomas E. Stanton, Jr., Johnson & Stanton, San Francisco, Cal., for appellants.

Dinkelspiel & Dinkelspiel, Robert J. Drewes, San Francisco, Cal., for appellees.

Before HEALY and LEMMON, Circuit Judges, and BYRNE, District Judge.

BYRNE, District Judge.

Appellants filed suit on a bond furnished by Carter, as contractor, and executed by Hartford Accident and Indemnity Company, as surety, pursuant to the provisions of the Miller Act, 40 U.S.C.A. § 270a et seq., to recover health and welfare contributions alleged to be due on account of labor performed on public work of the United States. The District Court granted Hartford's motion for summary judgment and this appeal followed.

The material facts which are not in dispute may be summarized as follows: Carter as general contractor entered into two written contracts with the United States of America for the construction of certain buildings at Travis Air Force Base and Mather Field in California. Under the terms of the contracts Carter was required to furnish the materials and pay the labor at wage rates set forth in the specifications which were a part of the contracts. Under the terms of the bond Hartford was obliged to make these payments in the event Carter defaulted. During the critical period with which we are concerned, there was in existence a collective bargaining agreement entered into between an employers' organization, of which Carter was a member, and an employees' organization of which the laborers employed by Carter were members. Pursuant to this agreement Carter was obligated to pay into a "Health and Welfare Fund" the sum of seven and one-half cents per hour for each hour worked by laborers employed by him. Carter paid in full the wage rates required under the terms of the contracts, but did not make the contributions to the Fund as he was obliged to do under the collective bargaining agreement. Following this default Carter became a bankrupt and the trustees of the Fund are here seeking recovery of the delinquent health and welfare contributions from the surety.

The question for decision is whether the surety is liable under its bond for the delinquent health and welfare contributions. Not only is this a question of first impression, but...

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7 cases
  • United States v. Peerless Casualty Company
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 21, 1958
    ...of that contract and the defense was that the Act did not cover the claim and the Court of Appeals for the Ninth Circuit so held. 229 F.2d 645, 647. It observed that recovery on a Miller Act bond is limited to persons who have "furnished labor or material in the prosecution of the work prov......
  • Indiana Carpenters Cent. and Western Indiana Pension Fund v. Seaboard Sur. Co.
    • United States
    • Indiana Appellate Court
    • October 19, 1992
    ...they were not the persons who had furnished labor or material, nor were they seeking sums "justly due" such persons. United States v. Carter (9th Cir.1956), 229 F.2d 645. The Supreme Court reversed the Court of Appeals and held the trustees of the benefit fund had standing to sue the surety......
  • United States Sherman v. Carter
    • United States
    • U.S. Supreme Court
    • April 29, 1957
    ...of the Act, since they were neither persons who had furnished labor or material, nor were they seeking sums 'justly due' such persons. 9 Cir., 229 F.2d 645. We granted certiorari to resolve the questions of statutory construction which are at issue. 351 U.S. 917, 76 S.Ct. 710, 100 L.Ed. Sec......
  • United States v. Carter
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 30, 1962
    ...granted summary judgment for the defendants. Upon appeal to this court that judgment was affirmed. United States for Benefit and on Behalf of Sherman v. Carter, 9 Cir., 229 F.2d 645. Thereupon the trustees petitioned for certiorari, which was granted; and after hearing in the Supreme Court ......
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