Missouri-Illinois Tractor & Equipment Co. v. D & L CONST. CO.

• Decision Date: 22 October 1964
• Docket Number: No. 17632.,17632.
• Citation: 337 F.2d 507
• Parties: MISSOURI-ILLINOIS TRACTOR & EQUIPMENT CO., Inc., Appellant, v. D & L CONSTRUCTION COMPANY & ASSOCIATES and Continental Casualty Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

337 F.2d 507 (1964)

MISSOURI-ILLINOIS TRACTOR & EQUIPMENT CO., Inc., Appellant, v. D & L CONSTRUCTION COMPANY & ASSOCIATES and Continental Casualty Company, Appellees.

No. 17632.

United States Court of Appeals Eighth Circuit.

October 22, 1964.

R. Richard Straub, of Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., made argument for appellant and filed brief.

John A. Biersmith, of Rafter, Biersmith, Miller & Walsh, Kansas City, Mo., made argument for appellee and filed brief.

Before MATTHES, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

Is a Capehart payment bond suit brought by a subcontractor's supplier controlled by the limitation period set forth in § 2(b) of the Miller Act, 40 U.S.C. § 270b(b) ("But no such suit shall be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied" by the plaintiff), or, instead, by the period the bond itself specifies ("No suit or action shall be commenced hereunder by any claimant * * * after the expiration of one (1) year following the date on which Principal the prime contractor ceases work on the contract")? This is the issue presented by this appeal. It was the first issue resolved by the court below in its general opinion, Travis Equip. Co. v. D & L Constr. Co. & Associates, 224 F.Supp. 410, 411-417 (W.D.Mo. 1963), applicable not only to this but, as well, to a number of other cases. Koppers Co. v. Continental Cas. Co., 337 F. 2d 499 (8 Cir. 1964), which we also decide today, has to do with the second issue the district court considered, pp. 417-418 of 224 F.Supp.

The claimant, Missouri-Illinois Tractor & Equipment Co., Inc., instituted the present action in federal court in June 1962. It asserted jurisdiction under the Capehart Act, 42 U.S.C. § 1594(a), under the general bond statute, 28 U.S.C. § 1352, and, perhaps somewhat significantly, under the very § 2(b) of the Miller Act quoted in part above. It is a suit to recover $9,478.46 for labor and material furnished by the plaintiff to W. S. Conner, a subcontractor on the Capehart project at Fort Leonard Wood, Missouri. The defendants are a joint venture, D & L Construction Company & Associates, the prime contractor, and Continental Casualty Company, Inc., the surety on its two Capehart bonds.

The plaintiff's labor and material were all supplied more than one year prior to the institution of its action. The suit, however, was begun within the year following the date on which D & L, as prime contractor and as principal on the Capehart bonds, ceased work on its contract. The defense of the Miller Act's limitation period was affirmatively pleaded by the surety.

The situation, thus, is one where the suit is barred if the Miller Act controls but where it is not barred if the bonds' provision governs. The district court held that it was the Miller Act which was applicable. Pursuant to the suggestion contained in that opinion, p. 418 of 224 F.Supp., the defendants then moved for summary judgment. That motion was granted and judgment was entered in their favor. There is no genuine issue as to any material fact within the meaning of Rule 56(c), F.R.Civ.P.

We are told that the question comes to us as a matter of first impression at the appellate level. We note, however, that one other federal district court has reached the same result and did so upon the authority of Judge Oliver's opinion below. Economy Forms Corp. v. Trinity Universal Ins. Co., (D.N.D.1964, 234 F. Supp. 930).

Our approach to these Capehart-Miller cases has been outlined at length in recent opinions. Continental Cas. Co. v. United States for Use and Benefit of Robertson Lumber Co., 305 F.2d 794 (8 Cir. 1962), cert. denied 371 U.S. 922, 83 S.Ct. 290, 9 L.Ed.2d 231; D & L Constr. Co. v. Triangle Elec. Supply Co., 332 F. 2d 1009 (8 Cir. 1964); Continental Cas. Co. v. Allsop Lumber Co., 336 F.2d 445 (8 Cir. 1964); Koppers Co. v. Continental Cas. Co., supra, 337 F.2d 499 (8 Cir. 1964). We need not repeat here what has been said in those four cases. We observe only that we have decided, expressly or by implication, that the Miller Act does have general application to Capehart bonds except, of course, where the two statutes are clearly different, or where the Miller Act's provisions have no sensible application to a Capehart bond, or where a procedural aspect, such as a more stringent but not unreasonable notice provision in the bond than is present in the statute, is in issue.

The plaintiff argues that the entry of summary judgment for the defendants here is in conflict with our decision in Robertson; that it is also in conflict with recent decisions of other courts; and that the limitation provision in the Capehart bonds is procedural in nature and is controlling.

The first of these arguments is fully answered, so far as we are concerned, by what we said in Allsop and by what we have today repeated in Koppers, particularly our statement,

"If strict logic perforce demands a conclusion that this decision is but another way of saying that § 270b (b) of the Miller Act has application to a Capehart bond suit, we may be understood as going that far in our present holding";

by our listing of and reference, p. 452 of 336 F.2d, to the factors prompting our conclusion there; and by our statements, in both Allsop and Koppers, that Robertson must be read "in context and not out of it, and in the light of the issue and holding of that case" and "Robertson stands for what it holds, namely, that the notice provisions of a Capehart bond prevail over the less stringent notice provisions in the Miller Act."

The plaintiff's second point also is fully answered by our observations in Koppers relative to United States for Use and Benefit of Miles Lumber Co. v. Harrison & Grimshaw Constr. Co., 305 F.2d 363 (10 Cir. 1962), cert. denied 371 U.S. 920, 83 S.Ct. 287, 9 L.Ed.2d 229, and to the three state court decisions, Ireland's Lumber Yard v. Progressive Contractors, Inc., 122 N.W.2d 554, 556-561 (N.D. 1963); Allsop Lumber Co. v. Continental Cas. Co., 73 N.M. 64, 385 P.2d 625, 628-629 (1963), and Minneapolis-Honeywell Regulator Co. v. Terminal Constr. Corp., 41 N.J. 500, 197 A.2d 557 (1964). Three other cases which the plaintiff has cited, National State Bank of Newark v. Terminal Constr. Corp., 217 F.Supp. 341 (D. N.J.1963), aff'd 328 F.2d 315 (3 Cir. 1964); United States for Use and Benefit of Fogle v. Hal B. Hayes & Associates, 221 F.Supp. 260 (N.D.Cal.1963), and United States for Use and Benefit of Robertson Lumber Co. v. Cedric Sanders Co., 223 F.Supp. 435 (D.N.D.1963), add...