Barnard-Curtiss Company v. United States, 5497.

• Decision Date: 23 May 1957
• Docket Number: No. 5497.,5497.
• Citation: 244 F.2d 565
• Parties: BARNARD-CURTISS COMPANY, and The Seaboard Surety Company, Surety, Appellants, v. The UNITED STATES of America for the use and benefit of D. W. FALLS CONSTRUCTION CO.; and Ace Construction Co., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

244 F.2d 565 (1957)

BARNARD-CURTISS COMPANY, and The Seaboard Surety Company, Surety, Appellants, v. The UNITED STATES of America for the use and benefit of D. W. FALLS CONSTRUCTION CO.; and Ace Construction Co., Appellees.

No. 5497.

United States Court of Appeals Tenth Circuit.

April 25, 1957.

Rehearing Denied May 23, 1957.

Robert S. Skinner, Raton, N. M. (Robertson & Skinner, Raton, N. M., and Arthur H. Lindeman, Minneapolis, Minn., were with him on the brief), for appellants.

Owen B. Marron and T. B. Keleher, Albuquerque, N. M. (John B. Tittmann, Albuquerque, N. M., was with them on the brief), for appellees.

Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal by Barnard-Curtiss Company, herein called Barnard, from a judgment in favor of D. W. Falls Construction Company, herein called Falls, and a further judgment in favor of Ace Construction Company, herein called Ace. The action was instituted by Falls and Ace against Barnard under 40 U.S. C.A. § 270a et seq., The Miller Act.

Barnard held a prime contract with the Bureau of Reclamation for the construction and repair of an irrigation system in New Mexico, known as the Vermejo Project. Barnard's project carried a completion date of June 15, 1955. In January, 1954, Barnard subcontracted part of the work to Falls. Falls' subcontract carried a completion date of December 31, 1954. Barnard retained certain of the work under the prime contract to be done by itself. Some of this work was required to be done before Falls could complete its subcontract. After doing some work on its subcontract, Falls subcontracted the balance thereof to Ace. This subcontract contained a completion date of December 14, 1954. The work covered by Falls' subcontract was not completed by December 31, 1954.

Work was still being done under these contracts on May 17, 1955, when a flood of such proportions as to constitute an act of God occurred inflicting serious damage to the project covered by Falls' subcontract and requiring a great deal of rehabilitation work to be done thereafter. Falls did not complete this rehabilitation work and Barnard was required to do so at an additional expense of $38,335.53, for which it has a claim pending with the Bureau of Reclamation.

In the complaint Falls and Ace sought to recover the balance due them for work which they had performed under the subcontracts. Barnard's answer contained a general denial, denying that it owed Falls or Ace anything. It also denied that the plaintiffs had performed the obligations of the subcontract. In addition, Barnard filed a counterclaim in which it alleged that Falls failed to complete its contract by the completion date of December 31, 1954, and that this delay together with the defective manner in which its work was done caused Barnard to do extra work in the amount of $14,285.17, for which amount it sought judgment against Falls.

It is conceded that the decision is hinged to the effect of the flood upon the legal liabilities of the parties to each other. The law is well established that the intervention of an act of God does not excuse performance of a contract unless loss resulting therefrom is excepted in the contract from the assumed liability.¹ This is also the law of this Circuit.² The subcontract did not exclude loss occasioned by an act of God. Falls and Ace did not complete their contract by December 31, 1954, and the subsequent intervention of an act of God did not relieve them from the duty of completing their contract and from liability for additional expenses resulting therefrom, unless Barnard was negligent in some of its obligations and that this negligence prevented completion of the subcontracts.

It is appellee's contention that the failure of Barnard to do preliminary work retained by it held them up in their work and without fault on their part prevented them from completing their contract before the intervention of the flood. If sustained by the record, this would be a...