Art Metal Const. Co. v. Lehigh Structural Steel Co.
| Decision Date | 27 November 1940 |
| Docket Number | No. 7492.,7492. |
| Citation | 116 F.2d 57 |
| Parties | ART METAL CONST. CO. for Use of McCLOSKEY & CO., Inc., v. LEHIGH STRUCTURAL STEEL CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Edward J. Mingey and Edward P. Smith, both of Philadelphia, Pa., for appellant.
Charles H. Weidner and Stevens & Lee, all of Reading, Pa., for appellee.
Before CLARK, JONES, and GOODRICH, Circuit Judges.
This is an appeal from a judgment entered upon the pleadings on a motion by the defendant, Rule 12(c), Rules of Civil Procedure, 28 U.S.C.A. following section 723c. In considering such a motion the facts alleged by the plaintiff must be taken to be true and the inquiry is whether upon those facts plaintiff has stated a cause of action. Ulen Contracting Corp. v. Tri-County Electric Coop., D.C.Mich.1940, 1 F.R.D. 284. From the plaintiff's complaint the following facts appear:
McCloskey & Co. was the general contractor for the erection of a new court house in Berks County, Pennsylvania. Bauman Iron Works, Inc., was awarded a sub-contract by McCloskey & Co. for the structural steel, ornamental iron, architectural bronze and wrought-iron and cast aluminum for the price of $246,000. Subsequently, Bauman sub-contracted the structural steel work to the Lehigh Structural Steel Co. for $179,500 and several weeks later sublet to the Art Metal Construction Co., plaintiff and appellant herein, the architectural bronze and wrought-iron work for the finally adjusted price of $28,780.70. About one month later Bauman assigned the McCloskey-Bauman contract to Lehigh without the knowledge of McCloskey or Art Metal. Art Metal performed its work to the satisfaction of the architects. Bauman received from McCloskey approximately $208,000 which it turned over to Lehigh. Bauman has become insolvent and a receiver has been appointed for it. Art Metal received some payments from Bauman during the progress of the work and received a small dividend from the receiver. Of the balance of over $9,000 still due it under the contract, Art Metal received a little more than half from McCloskey & Co. directly. It brought this suit against Lehigh to recover that balance for itself and McCloskey.
We think that the court below erred in entering judgment for the defendant. The contract between McCloskey and the County provided that "The contractor agrees to bind every sub-contractor and every sub-contractor agrees to be bound by the items of the Agreement, the General Conditions, the Drawings and Specifications so far as applicable to his work. * * *" The contract further provided that all sub-contractors agreed to be bound to the contractor by the terms of the agreement, the general conditions, the drawings and specifications so far as applicable to their work and to assume toward him all of the obligations and responsibilities which the contractor assumed toward the County. One of the obligations specifically undertaken by the contractor with the County was to pay sub-contractors.1
The McCloskey-Bauman contract specifically stated that it was made subject to McCloskey's agreement with the County which was incorporated by reference into the McCloskey-Bauman contract. At this point it can readily be seen that under the McCloskey-Bauman contract there arose a duty on the part of Bauman to pay...
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