Central Surety & Insurance Corp. v. Martin Infante Co.

• Decision Date: 04 November 1959
• Docket Number: No. 12851.,12851.
• Citation: 272 F.2d 231
• Parties: CENTRAL SURETY AND INSURANCE CORPORATION v. MARTIN INFANTE CO., Inc. Board of Education of Township of Millburn in County of Essex; and Conti Bros. Roofing Co.; and New Jersey Hardware Co., United States of America, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

272 F.2d 231 (1959)

CENTRAL SURETY AND INSURANCE CORPORATION v. MARTIN INFANTE CO., Inc. Board of Education of Township of Millburn in County of Essex; and Conti Bros. Roofing Co.; and New Jersey Hardware Co United States of America, Appellant.

No. 12851.

United States Court of Appeals Third Circuit.

Argued September 22, 1959.

Decided November 4, 1959.

Myron C. Baum, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, George F. Lynch, Attys., Dept. of Justice, Washington, D. C., Chester A. Weidenburner, U. S. Atty., Charles H. Hoens, Jr., Asst. U. S. Atty., Newark, N. J., on the brief), for appellant.

Ward J. Herbert, Newark, N. J., (McCarter & English, Alfred J. Kovell, Newark, N. J., on the brief), for appellee.

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

The instant action is for a determination of the relative rights of the United States and a surety to a fund interpleaded in the District Court for the District of New Jersey by the Board of Education of the Township of Millburn, New Jersey. The action was originally instituted by the Central Surety and Insurance Corporation (Surety) in the Chancery Division of the Superior Court of New Jersey. Subsequently the United States was made a defendant as a tax claimant and removed the case to the district court pursuant to 28 U.S.C. § 1444.

On August 17, 1954, Martin Infante Co., Inc., (Infante) entered into a contract with the Board of Education of the Township of Millburn (Board) for the construction of a senior public high school for $1,367,460. Contemporaneously with the execution of the construction contract, the appellee became surety upon a performance and payment bond, required by N.J.S.A. 2A:44-143, which incorporated by reference the contract.

Infante commenced performance of the contract and received partial payments pursuant to the terms of the contract; however, it was unable to complete its undertaking. When Infante admitted default on February 23, 1956, more than a month after the scheduled completion date, there was not only a substantial amount of work to be completed but numerous unpaid job obligations and lien claims of materialmen and subcontractors had accrued. Surety thereupon paid the claims, taking assignments of their respective liens, and completed the contract, utilizing the facilities of Infante.¹ The district court found that after the default Surety expended in fulfillment of the contract $548,061.69, only $402,217.33 of which was received from the Board. Thus, the out-of-pocket loss to Surety was $145,844.36 unless it is permitted to reach the $99,117.19 remaining in the registry of the court.²

The lien of the United States is alleged to have arisen on February 15, 1956, when the District Director of Internal Revenue assessed and made demand of Infante for payment of taxes due. A notice of levy was subsequently served upon the Board in an attempt to attach any moneys in its hands due to Infante.

The Federal tax liens here involved arose under Sections 6321 and 6322 of the Internal Code of 1954, 26 U.S.C.A. §§ 6321, 6322. In pertinent part, Section 6321 provides that "If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount * * * shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person." (Emphasis supplied.) Although there has been extensive discussion, both in the briefs and at oral argument, concerning the priority of liens, it is clear beyond doubt that we must first consider whether or not Infante had any property or rights to property upon which a lien for Federal taxes could attach. As Justice Brennan indicated in determining whether a deceased had property rights in a life insurance policy to which a lien could attach:

"We must now decide whether Mr. Bess possessed in his lifetime, within the meaning of § 3670 now 26 U.S.C. § 6321, any `property\' or `rights to property\' in the insurance policies to which the perfected lien * * * might attach. Since § 3670 creates no property rights but merely attaches consequences, federally defined, to rights created under state law, Fidelity & Deposit Co. of Maryland v. New York City Housing Authority, 2 Cir., 241 F.2d 142, 144, we must look first to Mr. Bess\' right in the policies as defined by state law." United States v. Bess, 1958, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057, 2 L.Ed.2d 1135.

The district court made no separate findings but rather incorporated them in its opinion. It concluded upon ample evidence, aside from Infante's admission, that there had been a default upon the contract. Our independent examination of the record compels the same conclusion.

By the terms and conditions of its contract with the Board, Infante became entitled to receive payments thereunder only if (a) the work had been completed to the satisfaction of the architect, (b) there were no outstanding claims against Infante filed with the Board, and (c) satisfactory evidence had been submitted to the Board that all obligations incurred by Infante and its subcontractors in carrying out the project had been satisfied. As of the date the Federal lien is alleged to...