Bruce Construction Corp. v. United States, 16374.

• Decision Date: 12 April 1957
• Docket Number: No. 16374.,16374.
• Citation: 242 F.2d 873
• Parties: BRUCE CONSTRUCTION CORPORATION et al., Appellants, v. UNITED STATES of America for use of WESTINGHOUSE ELECTRIC SUPPLY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 873 (1957)

BRUCE CONSTRUCTION CORPORATION et al., Appellants, v.UNITED STATES of America for use of WESTINGHOUSE ELECTRIC SUPPLY COMPANY, Appellee.

No. 16374.

United States Court of Appeals Fifth Circuit.

April 12, 1957.

Charles R. Scott, Jacksonville, Fla., H. Reid DeJarnette, Miami, Fla., John S. Cox, Marvin L. Thacker, Jacksonville, Fla., Scott & Cox, of counsel, Jacksonville, Fla., for appellants.

Eugene T. Branch, Atlanta, Ga., Ray W. Richardson, Jacksonville, Fla., Bird & Howell, Atlanta, Ga., Patterson, Freeman, Richardson & Watson, Jacksonville, Fla., of counsel, for appellee.

Before TUTTLE and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question is whether summary judgment ought to have been granted against a general contractor and its surety¹ in an action under the Miller Act, 40 U.S.C.A. §§ 270a-270d, for materials furnished to or for a subcontractor² for construction of a Veterans Hospital.

We have long recognized that no matter how enticing, in an era of congested dockets, is a device to dispose of cases without the delay and expense of traditional trials with their sometime cumbersome and time-consuming characteristics, summary judgment was not devised for, must not be used as, a substitute for trial.Its wholesome utility is, in advance of trial, to test, not as formerly on bare contentions found in the legal jargon of pleadings, but on the intrinsic merits, whether there is in actuality a real basis for relief or defense.Consequently, where the proceedings have indicated that a genuine issue existed, we have consistently rejected³ appealing shortcuts and not the less so even though it was likely that on a trial, the trier would resolve the disputed issues as one of fact in the same manner as when thought to have been one of law alone.

But, equally vigorous in giving full range to this mechanism, we have just as consistently rejected any notions that pretense, or apparent formal controversy can thwart application of this rule or hamstring the court in determining whether it is a proper case for it.Consequently, when a movant makes out a convincing showing that genuine issues of fact are lacking, we require⁴ that the adversary adequately demonstrate by receivable facts that a real, not formal, controversy exists, and, of course, he does not do that by mere denial or holding back evidence.

And yet, reflecting in spots a picayunishness out of step with the spirit of the Federal Rules, that is just what the General Contractor did and which the District Court found, as do we, inadequate.

It asserts, for example, that an issue of fact was revealed because the complaint alleged that the last material was supplied to the Subcontractor on January 14, 1955, while one affidavit said it was January 15, and two others fixed it at January 17.But this was just such trivia as the Federal Rules were designed to weed out.For the date was important only in fixing the time within which the 90-day written notice must be given, 40 U.S.C.A. § 270b, where services or supplies are furnished to a subcontractor.And, except for a like quibbling, there was really no question about this.By categorical affidavit, an authenticated copy of the letter dated January 24, 1955, from the Supplier to the General Contractor (with indicated copies to the Subcontractor and surety) giving plain notice that the unpaid balance of the Subcontractor's account was $112,997.78 was shown to have been sent Registered-Return Receipt Requested that day and receipted for by a specified representative of the General Contractor on January 26, 1955.Because another somewhat similar letter was sent on May 23, 1955, beyond the 90-day period, and the copy of the one of January 24 was not somehow itself sworn or certified to, Fed.Rules Civ.Proc. rule 56(e),28 U. S.C.A. (although the affidavit of the credit manager incorporated and attached it as an exhibit) and these minor discrepancies appeared, it is claimed that a court, with or without a jury, had to hear evidence on this matter even though it was conceded on argument, as it had to be that a notice specifying the balance as $112,997.78 was a statement "with substantial accuracy" for a claim asserted and allowed finally in the sum of $114,770.52, Coffee v. United States, 5 Cir., 157 F.2d 968;Houston Fire & Casualty Insurance Co. v. United States, 5 Cir., 217 F.2d 727.

Equally hypercritical is the struggle to contrive a dispute over the filing of the suit within one year after the date of final settlement between the Government and the contractor, 40 U. S.C.A. § 270b(b).As it was undisputed, we hold above, that the last material was supplied about January 15-17, 1955, the contract obviously was not then closed, and the suit, filed August 26, 1955, while theoretically capable of being too early, could not possibly have been too late.Moreover, no one would have better knowledge of the exact time final settlement was made with the Government, or more ready means for obtaining the conclusive certificate of the Comptroller General, 40 U.S.C.A. 270c, than the General Contractor.It could not, in the good faith the Rules command, FRCP 8(b), 11, 56(g), construct a disputed issue by allegations in its answer that it was "without knowledge as to those * * * allegations of * * * said complaint."And when this matter, after a year's pretrial discovery, reached a hearing on the motion for summary judgment in which the Judge, FRCP 56(d), by examination of the papers and "interrogating counsel," would have to determine to what extent genuine issues were lacking, it was for the General Contractor then to demonstrate under oath what it did not attempt to do, because it could not.So the complaint again is that trial was denied of an issue in fact utterly out of the case, and on which no dispute could or did exist and which, of all people, the General Contractor so well knew.

The matter stands no differently when it comes to the accuracy and recoverability of the amount ($114,770.52) sued for and allowed.This was not, as has sometimes been the case, of court and some counsel rushing headlong into timesavers that turn out to be time wasters.Here, starting with a complaint which attached a detailed list showing the date, number and amount of every invoice, charge and credit, discovery machinery was used by the General Contractor as fully as desired.Detailed, sworn, factual answers by the Supplier to interrogatories showed the exact totals of all of the deliveries made and charged to the Subcontractor with credits, and those delivered to the General Contractor for use by the Subcontractor, and credits for payments made by it.These corresponded to the penny to the amount sued for and allowed.Subsequently, upon motion and order under FRCP 34, months before the submission of the motion for summary judgment, the General Contractor sought and the Supplier furnished for unlimited examination and use all purchase orders made to Westinghouse Electric Supply Company for materials used or to be used, all quotations made to the Subcontractor for materials used or to be used, and all invoices for materials furnished to be used or used in this construction project.And, months later, with no suggestion from the General Contractor that it did not have adequate information or time within which to procure it, the Supplier's motion for summary judgment was filed with affidavits of three persons having personal knowledge of the matters, FRCP 56(e), categorically showing the delivery of all of the materials at the times, quantities and prices indicated in the identified invoices.Not until the eve of the hearing, September 14, 1956, did the General Contractor dispute or deny or claim doubt about knowledge when it filed the affidavit of one of the individual general contractors, Jack S. Mintzer.

From this, it is claimed, disputed issues arose for two reasons: first, while the complaint alleged the supply of "materials for the prosecution of the work * * * to the Subcontractor of a price or value of $114,770.52 * *," the affidavits and interrogatories showed without dispute that of this sum, $2,601.16 actually represented the net balance yet due and owing by the General Contractor not Subcontractor, for the materials supplied direct to it.Second, the counter-affidavit of Mintzer denied the correctness of the claimed amount and asserted that it was excessive to the extent that the invoice prices charged exceeded the quotation which the Supplier gave the Subcontractor.

The first ignores both the limited function of the complaint under rules which test relief by the evidence received, Millet v. Godchaux Sugars, Inc., 5 Cir., 241 F.2d 264, FRCP 15(b), and the substantive fact that the General Contractor and its surety are liable under the Miller Act for materials supplied...