421 F.2d 212 (4th Cir. 1970), 13349, Glassman Const. Co. v. United States for Use and Benefit of Clark-Fontana Paint Co.
|Citation:||421 F.2d 212|
|Party Name:||GLASSMAN CONSTRUCTION COMPANY, Inc., and Home Indemnity Company, Appellants, v. The UNITED STATES of America for the Use and Benefit of CLARK-FONTANA PAINT COMPANY, Inc., Appellee.|
|Case Date:||January 27, 1970|
|Court:||United States Courts of Appeals, Court of Appeals for the Fourth Circuit|
Argued Dec. 5, 1969.
Warren K. Kaplan, Washington, D.C., (Leonard S. Melrod, Washington, D.C., and David S. Goldberg, Rockville, Md., on brief) for appellants.
Sebert H. Keiffer and Joseph F. Vallario, Jr., Washington, D.C., for appellee.
Before SOBELOFF and CRAVEN, Circuit Judges, and MERHIGE, District judge.
CRAVEN, Circuit Judge:
This case was previously before us on appeal from a final judgment denying the present appellee, Clark-Fontana, any recovery. In our opinion reversing the judgment of the district court, United States ex rel. Clark-Fontana Paint Co. v. Glassman Construction Co., 397 F.2d 8 (4th Cir. 1968), we said nothing about further proceedings, other than to make it plain that Clark-Fontana was entitled to recover, but the judgment sent down to the district court contained the words '* * * remanded * * * to the * * * district court * * * for further proceedings not inconsistent with the opinion of the court filed herein.' Thereafter, Clark-Fontana moved for an order of payment, which was resisted by Glassman, the appellant here, on the ground that our mandate contemplated a partial new trial and authorized the district court to take additional evidence and make findings of fact and conclusions of law. The district court felt foreclosed on all issues by our opinion, despite the language of the mandate, and directed that judgment be entered for Clark-Fontana. Glassman appeals from this order. We think the district court correctly interpreted the mandate in the light of the filed opinion and affirm.
The original suit was brought under the Miller Act, 40 U.S.C. §§ 270a, 270b (1964), by Clark-Fontana, a supplier of materials. Glassman, the defendant in that action, was a general contractor, who had agreed to build certain housing units for the government on Andrews Air Force Base, Maryland. Glassman sublet the painting work in the contract to Elmore Decorators, who sought to obtain the paint needed for the job from Clark-Fontana. To assure payment by Elmore, Clark-Fontana requested that Glassman pay Elmore by means of checks that had to be jointly endorsed by Elmore and Clark-Fontana. Glassman, Elmore, and Clark-Fontana signed a written agreement to this effect, and payments were made accordingly. Clark-Fontana, however, did not withhold all the money owed by Elmore from the checks. Seven of nine checks issued by Glassman were placed in Elmore's bank account with Clark-Fontana's permission. The other two were placed in Clark-Fontana's account, but on these occasions Clark-Fontana issued its own checks to Elmore in order that Elmore could meet its payroll. The end result was that Elmore...
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