287 F.2d 108 (10th Cir. 1960), 6312, Hoeppner Const. Co. v. United States for Use of Mangum

Docket Nº:6312.
Citation:287 F.2d 108
Party Name:HOEPPNER CONSTRUCTION COMPANY, Inc.; and Houston Fire and Casualty Insurance Company, a Texas corporation, Appellants, v. UNITED STATES of America, for the use of E. L. MANGUM and A. E. Estes, Jr., doing business as United Painters & Decorators, a co-partnership, Appellee.
Case Date:December 13, 1960
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 108

287 F.2d 108 (10th Cir. 1960)

HOEPPNER CONSTRUCTION COMPANY, Inc.; and Houston Fire and Casualty Insurance Company, a Texas corporation, Appellants,

v.

UNITED STATES of America, for the use of E. L. MANGUM and A. E. Estes, Jr., doing business as United Painters & Decorators, a co-partnership, Appellee.

No. 6312.

United States Court of Appeals, Tenth Circuit.

December 13, 1960

Rehearing Denied March 30, 1961.

Page 109

Lowell White, Denver, Colo. (Walter A. Steele, Denver, Colo., was with him on the brief), for appellants.

Ira C. Rothgerber, Jr., Denver, Colo., and William E. Shade, Denver, Colo. (Rothgerber, Appel & Powers, Denver, Colo., were with them on the brief), for appellee.

Before MURRAH, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

BRATTON, Circuit Judge.

This case arose under the Miller Act, 40 U.S.C.A. § 270a et seq. The United

Page 110

States awarded to Hoeppner Construction Company, hereinafter referred to as the prime contractor, a contract for the rehabilitation of thirty-five barracks at Lowry Air Forcr Base, located at Denver, Colorado; and Houston Fire & Casualty Company executed as surety the required payment bond. The prime contractor awarded to E. L. Mangum and A. C. Estes, doing business under the trade name United Painters & Decorators, hereinafter referred to as the subcontractor, a subcontract to furnish the materials and perform the labor necessary to do the painting required by the prime contract; and Aetna Casualty and Surety Company, hereinafter referred to as Aetna, executed as surety the performance bond given in connection with the subcontract. The amount to be paid the stbcontractor was $40,000. The United States, for the use and benefit of the subcontractor, brought the action to recover from the prime contractor and the surety on the payment bond $14,756.59 alleged to be due the subcontractor. A balance of $9,520.55 due on the original contract price, and claims for extra material furnished and labor performed due to additions and changes made in the prime contract, were pleaded in the complaint and set forth in a document in the nature of a bill of particulars filed in the action. The prime contractor did not appear. The surety on the payment bond pleaded that the subcontractor was not the real party plaintiff in interest; pleaded that the prime contractor had made full payment of all sums due the subcontractor; pleaded that the claim was barred for failure of the subcontractor to file for record in Colorado a partnership affidavit as was required by the law of that saate; and pleaded that the prime contractor had furnished materials and labor to the subcontractor which constituted an offset and counterclaim against the subcontractor. By counterclaim, judgment was sought in the sum of $19,051.05. The court found and determined in effect that the prime contractor and the surety on the payment bond were indebted to the subcontractor in the sum of $10,645.81, and that the subcontractor was indebted to the prime contractor in the sum of $2,091.37. Judgment was entered for the subcontractor against the surety on the pay ment bond for $8,554.44, with interest.

The judgment is challenged on the ground that the subcontractor failed to file for record in Colorado a partnership affidavit as required by the law of that state. It is provided by statute in Colorado that any partnership or association of persons doing business or carrying on any trade in the state under any other name than the personal name or names of his or its constituent members shall file for record with the clerk and recorder of a specified county an affidavit setting forth certain specified information. C.R.S.1953, § 141-2-1. And it is further provided by statute that in default of filing such affidavit, a partnership shall not be permitted to prosecute suits for the collection of debts until the affidavit has been filed. C.R.S. 1953, § 141-2-2. But the right to maintain this action does not have its source in the law of Colorado. The right to institute and maintain the action in the United States District Court is expressly granted by the Miller Act. 40 U.S.C.A. § 270b. And the statutes of Colorado requiring the filing of the affidavit and withholding the right to prosecute an action for the collection of a debt until the affidavit has been filed do not condition or otherwise proscribe in any manner the right of the United States to institute and maintain in the United States Court for the use and benefit of a subcontractor an action against the prime contractor and the surety on the payment bond to recover a balance due for materials furnished and labor performed in pursuance of the subcontract.

The...

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