304 F.2d 753 (10th Cir. 1962), 6780, Golden West Const. Co. v. United States for Use and Benefit of Bernadot

Docket Nº:6780.
Citation:304 F.2d 753
Party Name:GOLDEN WEST CONSTRUCTION COMPANY, a corporation, and General Insurance Company of America, a corporation, Appellants, v. UNITED STATES of America for the Use and Benefit of George BERNADOT, d/b/a George W. Bernadot, Red-E-Mix Concrete Company; and Joseph Campbell, Comptroller General of the United States of America, Appellees.
Case Date:May 31, 1962
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 753

304 F.2d 753 (10th Cir. 1962)

GOLDEN WEST CONSTRUCTION COMPANY, a corporation, and General Insurance Company of America, a corporation, Appellants,

v.

UNITED STATES of America for the Use and Benefit of George BERNADOT, d/b/a George W. Bernadot, Red-E-Mix Concrete Company; and Joseph Campbell, Comptroller General of the United States of America, Appellees.

No. 6780.

United States Court of Appeals, Tenth Circuit.

May 31, 1962

Rehearing Denied July 2, 1962.

Page 754

Richard I. Singer, San Diego, Cal. (William J. Cayias, Salt Lake City, Utah, Ben B. Rubin, Norman T. Seltzer, Herbert J. Solomon, San Diego, Cal., and D. Eugene Livingston, Salt Lake City, Utah, on brief), for appellants.

Max K. Mangum, Salt Lake City, Utah (H. Arnold Rich and Leonard W. Elton, Salt Lake City, Utah, on brief), for appellees.

Before MURRAH, Chief Judge, and BREITENSTEIN and HILL, Circuit Judges.

MURRAH, Chief Judge.

By this appeal Golden West Construction Company and its surety, General Insurance Company of America, attack a

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judgment in a Miller Act (40 U.S.C.A. § 270a et seq.) case for the reasonable value of labor and materials furnished by appellee-Bernadot in connection with the construction by Golden West of government radar stations in Utah.

Shortly after Bernadot began work under its subcontract with Golden West, a new agreement was orally entered into between the parties which the jury, by special interrogatory, found to require Golden West to take over and perform the sub-contract; pay Bernadot's outstanding obligations incurred in connection with the sob-contract; reimburse Bernadot a reasonably amount, to be determined at a later date, for the use of equipment left on the job site by Bernadot. Judgment was entered in the amount stipulated by the parties as reasonable in the event the issues were resolved in favor of Bernadot.

Appellants contend that Bernadot's suit was not commenced within the limitation period prescribed by the Miller Act; that the trial court erred in the admission and exclusion of evidence; that General Insurance Company was relieved from its surety liability by reason of the substitution of a new agreement between Golden West and Bernadot; and that the trial court erroneously allowed interest against General Insurance Company prior to its notice of Golden Wests' default.

The timeliness of Bernadot's suit is governed by 40 U.S.C. § 270b, which, prior to amendment in 1959, provide that 'miller Act' claims must be commenced within one year of the 'final settlement' date of the general contract under which the obligation sued upon arose. 1 At that time, section 270c provided that the date certified by the Comptroller General of the United States as the 'final settlement' date '* * * shall be conclusive as to such date upon the parties.' 2 The parties agree that this suit was commenced within one year from the date certified by the Comptroller General. Appellants contend, however, that the Comptroller General's certificate is reviewable for fraud or bad faith and assert that the determination of the final settlement date was so erroneous as to imply bad faith. And see Peerless Casualty Company et al. v. United States for Use and Benefit of Bangor Roofing and Sheet Metal Company (1 C.A.), 241 F.2d 811; United States of America for Use of Soda v. Montgomery et al. (U.S.D.C.M.D.Pa.), 170 F.Supp. 433; 269 F.2d 752 (3 C.A.).

Assuming that the certification by the Comptroller General under the pre-amended statute was reviewable in the manner suggested, the trial court specifically found that there was '* * * no evidence of bad faith or fraud in connection with the certification of the Comptroller General of the United States' and that the certification is supported by 'substantial evidence.' We agree with the trial court. The record shows that the Comptroller General had, prior to his certification, information in the form of letters indicating that work had been completed and accepted by January 16, 1959; that an Equalization Order...

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