Fourt v. United States
| Decision Date | 23 June 1956 |
| Docket Number | No. 5255.,5255. |
| Citation | 235 F.2d 433 |
| Parties | Ralph A. FOURT, doing business as Fourt Construction Company, and American Bonding Company of Baltimore, a corporation, Appellants, v. UNITED STATES of America, for the use of WESTINGHOUSE ELECTRIC SUPPLY COMPANY, a corporation, and Calvin D. Clevenger, doing business as Clevenger Electric Company, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edgar E. Bethell, of Bethell & Pearce, Forth Smith, Ark., for appellants.
Robert L. Cox, Oklahoma City, Okl., for appellees.
Before BRATTON, Chief Judge, PHILLIPS, Circuit Judge, and ROGERS, District Judge.
This is an appeal from a judgment in favor of Westinghouse Electric Supply Company in the amount of $2,660.97 against Ralph L. Fourt, prime contractor and the latter's corporate surety, American Bonding Company. The suit was brought under the Miller Act, 40 U.S.C.A. § 270a et seq., and pertains to a contract entered into between Fourt and the United States to convert a certain building at Fort Sill, Oklahoma, into a Training Aid Sub-center. Fourt, in turn, sub-let the furnishing and installation of electrical materials to one Clevenger. Clevenger, during the periods hereinafter mentioned, ordered from appellee Westinghouse Electric Supply Company, electrical materials called for in the specifications which were a part of the contract between Fourt and the United States. It was for a claimed balance of $3,653.54 that complaint was filed below.
Two questions are presented for review. First, did the appellee materialman give the contractor the ninety-day notice required by Section 270b of Title 40 U.S.C.A.? Second, did the materialman give the sub-contractor proper credit for payments made by the latter, during the period when the Fourt-United States contract was being performed?
A brief chronology of events is necessary for a determination of the issues here pending. A contract between Ralph A. Fourt and the United States was signed April 28, 1953, and among the many provisions thereof was one providing that the work be completed within ninety calendar days after Fourt received a "notice to proceed" from the government. This notice was given on May 11, 1953. Physical completion of the contract for all purposes was accomplished September 29, 1953. Final inspection of the job by Post Engineers was had on October 2, 1953. Final settlement of the contract, as between Fourt and the United States was had on November 16, 1953.
Appellee Westinghouse made a series of shipments of materials pursuant to orders from sub-contractor Clevenger, the last series of which occurred on October 9, November 6, November 13 and November 17, 1953. A written notice of delinquency was duly served upon the prime contractor, Fourt, by appellee Westinghouse on January 11, 1954. Evidence, substantial in nature, establishes that the materials which made up the last shipments, were ordered for the job, but on arrival were placed in the sub-contractor's inventory to replace identical items theretofore removed from the sub-contractor's inventory and used in the prosecution of the work provided for in the contract.
The record demonstrates with finality that the statutory notice required by Section 270b, supra, from the materialman to the prime contractor, was received by appellants from appellee fifty-five days after the shipment by appellee to Clevenger was received by the latter on November 17, 1953.
As to the first question, relative to the giving of notice, we must resolve it favorably to appellee, inasmuch as the surety bond furnished by the appellant American Bonding Company of Baltimore, covers material furnished the contractor and which was not actually used in the performance of the contract, but which replaced identical items withdrawn from the sub-contractor's inventory, and actually used on the contract job.
The provisions of the Miller Act, Title 40 U.S.C.A. § 270a et seq., requiring persons holding contracts with the...
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