United States v. Clifford F. MacEvoy Co.
Decision Date | 17 March 1943 |
Docket Number | Civ. No. 2103. |
Parties | UNITED STATES, for Use and Benefit of CALVIN TOMKINS CO. v. CLIFFORD F. MacEVOY CO. et al. |
Court | U.S. District Court — District of New Jersey |
Benjamin P. DeWitt, of New York City, for plaintiff.
Elmer O. Goodwin, of Newark, N. J., for defendants.
The issues here arise on motion to dismiss the complaint on the ground that it fails to state a valid cause of action.
It appears upon the face of the complaint herein that the MacEvoy Company entered into a contract with the Federal Works Administrator under the terms of which the MacEvoy Company was to furnish materials for and construct seven hundred dwelling units known as the Government's Housing Project N. J. 28071. Thereafter the MacEvoy Company as principal and Aetna Casualty and Surety Company as surety entered into a bond in the amount of a million dollars conditioned to "promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in the aforesaid contract" pursuant to Statute 40 U.S.C.A. §§ 270a, 270b.
Thereafter the MacEvoy Company contracted with the Miller Company for the furnishing of building material by the Miller Company for the prosecution of the work covered by the aforesaid contract, and further thereafter the Tomkins Company, plaintiff herein "at the special instance and request of the Miller Company duly furnished and supplied to the Miller Company building materials at the agreed price and of the reasonable value of $47,119.14" on which a balance of $12,033.49 remains unpaid. These materials were delivered on the job by the plaintiff and used in the performance of the contract between the Federal Works Administrator and the MacEvoy Company and as alleged: "with the knowledge and consent of the MacEvoy Company". The Statute involved reads as follows: § 270b, Title 40 U.S.C.A. (Italics supplied.)
A question arises as to whether on the face of the complaint the plaintiff is shown to have any direct contractual relationship with a subcontractor. This leads to a further question. Was the materialman Miller a subcontractor within the meaning and intent of the statute? It is noted that the Heard Act, 40 U.S.C.A. § 270, which preceded the Miller Act above quoted, contained no proviso such as that underlined above. The construction therefore placed on the Heard Act by the courts in the cases next below cited must be read in the light of the absence of the proviso and when so considered they afford little if any assistance in answering the questions above propounded. See U. S. use of Hill v. American Surety Company of N. Y., 200 U.S. 197, 26 S.Ct. 168, 50 L.Ed. 437; Continental Casualty Co. v. North American Cement Corporation, 67 App.D.C. 234, 91 F.2d 307; and Utah Const. Co. et al. v. United States, 9 Cir., 15 F.2d 21.
The proviso in the Miller Act lies at the base of the plaintiff's right of recovery in the instant case. If it appears that the materialman Miller, to whom plaintiff furnished materials, comes within the meaning and intent of the word, subcontractor, then plaintiff has a contract with a...
To continue reading
Request your trial-
Clifford Evoy Co v. United States Calvin Tomkins Co
...on the payment bond. The District Court granted petitioners' motion to dismiss the complaint for failure to state a claim against them. 49 F.Supp. 81. The Circuit Court of Appeals reversed the judgment. 137 F.2d 565. We granted certiorari because of a novel and important question presented ......
-
United States v. Clifford, 8351.
...to another materialman who in turn had a contract with the contractor, does not fall within the benefits afforded by the statute." 49 F.Supp. 81, 83. Consequently, the plaintiff's complaint was dismissed for failure to state a valid cause of action. With all due respect to the court below, ......