United States v. Clifford F. MacEvoy Co.

Decision Date17 March 1943
Docket NumberCiv. No. 2103.
PartiesUNITED STATES, for Use and Benefit of CALVIN TOMKINS CO. v. CLIFFORD F. MacEVOY CO. et al.
CourtU.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.

FAKE, District Judge.

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: "(a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: Provided, however, that any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelop addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons." § 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...

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2 cases
  • Clifford Evoy Co v. United States Calvin Tomkins Co
    • United States
    • United States Supreme Court
    • April 24, 1944
    ...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.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 13, 1943
    ...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, ......

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