United States v. Campbell, 17181

• Citation: 293 F.2d 816
• Decision Date: 17 August 1961
• Docket Number: No. 17181,17182.,17181
• Parties: UNITED STATES of America ex rel. CARTER-SCHNEIDER-NELSON, INC., a corporation, Appellant, v. Jack T. CAMPBELL, doing business as Campbell Construction and Equipment Company, and Fidelity and Casualty Company of New York, a corporation, Appellees. UNITED STATES of America ex rel. CARTER-SCHNEIDER-NELSON, INC., a corporation, Appellant, v. Jack T. CAMPBELL, doing business as Campbell Construction and Equipment Company, and Phoenix Assurance Company of New York, a corporation, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

293 F.2d 816 (1961)

UNITED STATES of America ex rel. CARTER-SCHNEIDER-NELSON, INC., a corporation, Appellant, v. Jack T. CAMPBELL, doing business as Campbell Construction and Equipment Company, and Fidelity and Casualty Company of New York, a corporation, Appellees.

UNITED STATES of America ex rel. CARTER-SCHNEIDER-NELSON, INC., a corporation, Appellant, v. Jack T. CAMPBELL, doing business as Campbell Construction and Equipment Company, and Phoenix Assurance Company of New York, a corporation, Appellees.

Nos. 17181, 17182.

United States Court of Appeals Ninth Circuit.

August 17, 1961.

Anderson, McPharlin & Conners and Kenneth E. Lewis, Los Angeles, Cal., for appellant.

Thomas E. Davis, Arthur M. Bohnert, Jr., Bohnert & McCarthy and Dudley Harkleroad, Barrett, Lucy & Harkleroad, San Francisco, Cal., for appellees.

Before BARNES, HAMLIN and JERTBERG, Circuit Judges.

BARNES, Circuit Judge.

These are two suits under the Miller Act. Jurisdiction in the trial court was based upon 40 U.S.C.A. §§ 270a through 270d. Jurisdiction in this court rests upon 28 U.S.C. § 1291.

Appellant is a lessor of earth moving equipment. In March 1956 it leased such equipment to Anderson-Kerber Co., a subcontractor engaged in work on public works projects at Fort Funston and Travis Air Force Base. The prime contractor on both projects was appellee Campbell Construction and Equipment Company (Campbell). The original lease arrangement contemplated use of the machinery at Fort Funston and not elsewhere, but a subsequent oral modification provided that the subcontractor could use the equipment at Travis.

After the subcontractor had been in default on the rent for several months, appellant brought an action, under the Miller Act (40 U.S.C.A. §§ 270a through 270e), against Campbell, the general contractor, and Fidelity and Casualty Company of New York (Fidelity), the surety on the Fort Funston project. A separate Miller Act action was brought against Campbell and Phoenix Assurance Company of New York (Phoenix), the surety on the Travis project. The two actions were consolidated for trial but were concluded by separate judgments.

Appellant was granted no relief in the action against Phoenix. The court held that appellant had not given timely notice of his claim as required by the Miller Act. In the action against Fidelity, appellant was awarded a judgment in the sum of $7,273.33 for the reasonable value of the machinery used at Fort Funston. Appellant has taken appeals from both judgments.

I — Appeal of the Action Against Fidelity:

A. In this appeal appellant claims that the judgment in its favor was insufficient in amount. Further, appellant claims, the court erred in not awarding it pre-judgment interest on the judgment recovered.

Appellant contends that it should receive rental payments for the total period during which the equipment was out of its possession. Appellant notes that it rented the equipment to a single subcontractor working under a single prime contractor. It would not be faced with its present difficulty, it maintains, were it not for the facts that the equipment was used on two jobs and that the prime contractor chose a different surety for each job.

Appellant does not contend, however, that the surety on the Funston project should be held for the whole amount of rental allegedly due for equipment used on both projects. It admits that such a result would be inequitable. Furthermore such a result would be beyond the contemplation of the Act. 40 U.S.C.A. § 270b makes the surety liable only for material supplied in connection with the bonded project.

Appellant does contend, however, that the amount awarded it in connection with the Funston project was inadequate. The court granted a judgment of $7,273.33 against Fidelity; while appellant claims that it is entitled to a judgment of $9,654.11. The court's computation of the unpaid rent is in error, appellant claims, because it is based upon the actual use of the equipment at the Funston project; appellant should be compensated, it contends, for the time during which the equipment was available for use at Funston, even if it was not actually used all the time. This, however, is a false issue (and the battle of case authority which the parties have engaged in with respect to it is irrelevant), for the court's computations purport to award rent for the time during which the equipment was "located at" Funston (Findings IV and V, especially at pp. 67 and 69 of the Record, Volume I in appeal No. 17181). And it does not appear that "available at" means anything other than "located at," especially when it is noted (as will be seen below) that appellant's computation of the "availability" of particular equipment at various places corresponds significantly and almost precisely with the court's computation of when the equipment was "located at" those places. We note that appellant has not explicitly attacked the court's findings with respect to the location of the equipment at various relevant times, nor has it alleged that those findings are not supported by substantial evidence.

The disagreement between the court's figure and appellant's can be understood only by comparing their methods of computation. The manner in which appellant finally arrived at its figure of $9,654.11 appears on page 26 of its Opening Brief. There it notes that the total rental for the two items of equipment which were used in part at Funston was $17,766.67. It would then allocate to the Funston project a portion of this total rental in accordance with its calculation of the time during which the equipment was available for use at Funston. It determined that the two tractors in question were "available" for use at Funston for a total of two hundred and thirty-two days and at Travis for a total of two hundred and seventy-six days, a grand total of five hundred and eight days. So, appellant apportions to Funston 232/508 of the total rental on the two tractors. Interestingly enough, the courts computation (See Record, Vol. I in appeal No. 17181, p. 67) establishes that the two tractors were located (and therefore available for use) at Travis and Funston for a grand total of five hundred and seven days, the period of availability at Funston being two hundred and fifty days, eighteen days more than the period revealed by appellant's calculations. Yet the court arrived at a rental figure substantially lower than that computed by appellant. This is because the court's computation takes into account the fact that all rent was paid through May 27, 1956. The court limited its award to rent accruing after that date. Thus Tractor No. 1 was located at Funston for only one hundred and seven days after May 27th, and only the rent accruing during this time was allowed. Similarly Tractor No. 2 was located at Funston for only fifty-seven days after May 27th, and the court allowed recovery only for rent accruing during this period. Appellant's computation also takes into account the rent paid prior to May 27th; but it apportions this rent to each of the six items in the proportion which the total rent paid bears to the total rent due. (See Appellant's Opening Brief, p. 25.) The total rent paid, $12,232.00 is approximately twenty-two and sixty-four one hundredths per cent of the total rent due, $54,024.33. For that reason appellant allocated $2,400 of the total rent paid to "Cat. i. e., Tractor #2" and a like amount to "Cat. Tractor #3," because this figure is twenty-two and sixty-four one hundredths per cent of the total rent due ($10,600) for each of these items. There is no compelling reason to accept appellant's method of calculation, for not all of the items were used for the same period of time before May 27th, and the items used at Fort Funston were in use before May 27th for a longer time than any other items. (For example, Cat. #3 which was not put in use until April 17, 1956 (see Record, p. 67) receives as much rent-paid credit ($2,400) under appellant's computation as Cat. #2 which was put in service on March 27, 1956). The court's method of computation is entirely accurate: it permits appellant to recover all rent accruing on those items located at Funston after May 27, 1956. And appellant has received all the pre-May 27th rent accruing on such items.

Appellant's claim for additional compensation has nothing to do with its contention that the court based its findings on the "use" rather than the "availability" of the equipment. Appellant's numerous case citations on this issue are, therefore, not in point.

B. Interest.

The trial court refused to award pre-judgment interest to appellant on its recovery. Appellant claims that this was error, relying on Cal.Civ.Code § 3287 which permits the recovery of interest on damages from the time that the right to such damages becomes vested. Such pre-judgment interest is recoverable, however, only if the damages are certain or capable of being made certain by calculation. The court, in the instant case, held that the amount claimed was in dispute and uncertain because plaintiff sought, in each complaint, rental in excess of any possible amount that it was entitled to recover. Appellant counters that it had no choice but to claim the full amount of unpaid rent against both sureties for it then had no access to the records of the subcontractor and therefore no basis for allocating the rental charges between the two jobs. Whatever the reason behind appellant's position may be, it is clear, in view of the hot dispute over the proper principle of allocating the rent already paid, that the amount due appellant could not be made certain by mere calculation. The court was correct in refusing interest on the ground that the claim was unliquidated (see James Stewart Co. v. Dennett Robertson Electric, Inc., 9 Cir., 1961, 291 F. 2d 147).

We affirm the judgment of the trial court in the appeal number 17181 arising out of the action against Fidelity.

II — Appeal in the...