Brogan v. National Surety Co

• Decision Date: 04 March 1918
• Docket Number: No. 171,171
• Citation: Brogan v. National Surety Co, 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703 (1918)
• Parties: BROGAN v. NATIONAL SURETY CO
• Court: U.S. Supreme Court

246 U.S. 257

38 S.Ct. 250

62 L.Ed. 703

BROGAN

v NATIONAL SURETY CO.

No. 171.

Argued Jan. 30 and 31, 1918.

Decided March 4, 1918.

[Syllabus from 257-258 intentionally omitted]Mr. John A. Cline, of Cleveland, Ohio, for plaintiff in error.

Messrs. John M. Garfield and Thomas H. Hogsett, both of Cleveland, Ohio, for defendant in error.

[Arguments of Council on pages 158-159 intentionally omitted.]

Mr. Justice BRANDEISdelivered the opinion of the Court.

This is an action against the surety on a bond given under the Act of August 13, 1894, c. 280,28 Stat. 278, as amended by the Act of February 24, 1905, c. 778, 33 Stat. 811 (Comp. St. 1916, § 6923).The claim of Brogan, an intervening petitioner, was allowed by the District Court; but the judgment was reversed by the Circuit Court of Appeals and judgment entered against him upon the undisputed facts (National Surety Co. v. United States, 228 Fed. 577, 143 C. C. A. 99, L. R. A. 1917A, 336).The case comes here on writ of error under section 241 of the Judicial Code(ActMarch 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1218]).

The facts undisputed or as found by the lower court and accepted by the Court of Appeals were these: The Standard Contracting Company undertook to deepen the channel in a portion of St. Mary's river, Michigan, located 'in a comparative wilderness at some distance from any settlement.There were no hotels or boarding houses' and the contractor 'was compelled to provide board and lodging for its laborers.'Groceries and provisions of the value of $4,613.87 furnished it by Brogan, were used by the contractor in its boarding house; and were supplied 'in the prosecution of the work provided for in the contract and the bond upon which this suit is based.They were necessary to and wholly consumed in such work.'The number of men employed averaged 80.They were 'boarded' partly on the dredges, partly in tents supplied by the contractor; all under an arrangement made with the labor unions—by which the contractor was to board the men and deduct therefor $22.50 a month from their wages.The contract and the bond executed by the National Surety Company bound the contractor to 'make full payment to all persons supplying him with labor or materials in the prosecution of the work provided for in' the contract.

The supplies furnished by Brogan under these circumstances were clearly used in the prosecution of the work, just as supplies furnished for the soldiers' mess are used in the prosecution of war.In each case the relation of food to the work in hand is proximate.But the surety contends that the words 'in the prosecution of' the work are not used in the bond and the act in their natural sense, but should be given a conventional meaning so as to exclude labor and materials which contribute to construction only indirectly, as do the supplies consumed by a contractor in operating his plant.In support of this position, attention is called to the fact that while the Act of 1894 provided that the bond should have 'the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work,' and that suit might be brought and recovery had upon this bond by any person who had supplied 'labor or materials for the prosecution of such work,' the Act of 1905 specified that recovery could be had by the persons who had 'furnished labor or materials used in the construction or repair' of the work.But the change in phraseology is not significant.The purpose of the amendment was merely to secure to the United States preference over others in the satisfaction of its claim against the contractor.Illinois Surety Co. v. Peeler, 240 U. S. 214, 218, 36 Sup. Ct. 321, 60 L. Ed. 609.SeeReport of Committee on H R. 13,626, 58th Congress, Second Session, No. 2360.It was pointed out in Mankin v. Ludowici-Celadon Co., 215 U. S. 533, 538, 30 Sup. Ct. 174, 176(54 L. Ed. 315) that 'in respect to the condition of the bond required to be given, the language of the amended act is precisely the same as that contained in the act of August 13, 1894'; and in Hill v. American Surety Co., 200 U. S. 197, 201, 26 Sup. Ct. 168, 169(50 L. Ed. 437) that 'in respect to the persons entitled to the benefit of the bond there has been no material change in the act.'Illinois Surety Co. v. Peeler, supra, 240 U. S.p. 224, 36 Sup. Ct. 321, 60 L. E...