Consolidated Indemnity & Ins. Co. v. WA Smoot & Co.
| Decision Date | 12 April 1932 |
| Docket Number | No. 3259.,3259. |
| Citation | 57 F.2d 995 |
| Parties | CONSOLIDATED INDEMNITY & INS. CO. v. W. A. SMOOT & CO., Inc., et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
P. J. J. Nicolaides, of Washington, D. C. (William F. Kelly, of Washington, D. C., on the brief), for appellant.
Gardner L. Boothe, of Alexandria, Va., Alexander M. Heron, of Washington, D. C., and G. C. Hampton, Jr., of Greensboro, N. C. (Bynum E. Hinton, of Washington, D. C., and C. L. Shuping, Shuping & Hampton, and Wm. E. Comer, all of Greensboro, N. C., on the brief), for appellees.
Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.
This is an appeal by a surety company from a judgment in an action brought under the Hurd Act (28 Stat. 278, as amended 40 USCA § 270) by persons who had furnished materials to a government contractor, whose bond had been signed by the surety company. The action was instituted January 27, 1931, and thereafter a number of claimants intervened. A jury trial was waived and the case was heard by the District Judge, who found as a fact that the date of final settlement between the government and the contractor was July 9, 1930. Judgment was rendered in favor of a number of the claimants, and from this judgment the surety company appealed. The questions raised by the assignments of error relate to the date of final settlement, the contention of the company being that the finding of the trial judge with regard thereto is not sustained by the evidence.
The facts with regard to the final settlement are undisputed. Work under the contract, which was the construction of barracks at Ft. Humphreys, Va., was completed June 24, 1930. On June 28, 1930, the constructing quartermaster at Ft. Humphreys agreed with the contractor upon the balance remaining due under the contract and prepared a voucher for that amount which was signed by himself and the cOntractor. This voucher showed the amount due under the original contract, the increases made in the contract price by change orders A, B, C, and D, the total of these amounts, the amount of previous payments and the balance remaining due and payable, which was shown as $18,038.56. As prepared it was marked final payment on the contract. The contractor on the same day presented it for payment to the disbursing officer of the War Department in Washington, but the latter refused to pay it because not accompanied by change order D, which added $39.68 to the contract price. The constructing quartermaster thereupon directed the disbursing officer to change the voucher so as to eliminate therefrom the amount of change order D and to designate it as being the tenth partial payment instead of final payment. This was done by striking out the word "final" on the face of the voucher and writing "10th partial payment" above it, and by subtracting $39.68 from the total shown to be due under the voucher. The $39.68 was designated as "awaiting adjustment." The voucher then showed:
Original Contract ......................... $160,394.09
Change Order A, Increase dated 3/26/30 .... 4,527.05
" " B, " dated 4/10/30 .... 454.00
" " C, " dated 4/28/30 .... 288.57
" " D, " .................. 39.68
___________
Voucher Nos. on attached sheet ......... $165,703.39
Previous payments ......................... 147,664.83
___________
Amount due and payable ................. $ 18,038.56
Less amount of Change Order "D"
awaiting adjustment ................... 39.68
___________
Total .................................. $ 17,998.88
Check in the sum of $17,998.88 was then issued to the contractor.
On July 9, 1930, the constructing quartermaster executed and delivered to the contractor a voucher for final payment in the sum of $39.68, the amount of change order D. This voucher was approved for payment on July 23d and check in payment of same was issued on July 26th, being delayed because change order D had still not been received by the disbursing officer. It appears, however, that this change order had been duly signed by the constructing quartermaster on June 25th.
On these facts we agree with appellant that the finding that the final settlement occurred on July 9th is not supported by the evidence; but we think that the evidence shows conclusively that it did occur on June 28th. Final settlement as used in the Hurd Act does not mean final payment. "It means the final determination by the proper governmental authority of the amount which the government is finally bound to pay or entitled to receive under the contract." U. S., to Use of Stallings, v. Starr (C. C. A. 4th) 20 F.(2d) 803, 806; Illinois Surety Co. v. United States, 240 U. S. 214, 36 S. Ct. 321, 60 L. Ed. 609; Arnold v. U. S. (C. C. A. 4th) 280 F. 338; U. S. to Use of Union Gas Engine Co. v. Newport Shipbuilding Corporation (C. C. A. 4th) 18 F.(2d) 556. As said by the Circuit Court of Appeals for the Second Circuit in U. S. ex rel. Brown-Ketcham Iron Works v. Robinson, 214 F. 38, 40: ...
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