Great American Insurance Company v. United States

• Decision Date: 13 July 1973
• Docket Number: No. 249-67.,249-67.
• Citation: 481 F.2d 1298
• Parties: GREAT AMERICAN INSURANCE COMPANY v. The UNITED STATES, and Bank of America National Trust and Savings Association, Third-Party Defendant.
• Court: U.S. Claims Court

481 F.2d 1298 (1973)

GREAT AMERICAN INSURANCE COMPANY v. The UNITED STATES, and Bank of America National Trust and Savings Association, Third-Party Defendant.

No. 249-67.

United States Court of Claims.

July 13, 1973.

Edward Gallagher, Washington, D. C., attorney of record, for plaintiff.

Leslie H. Wiesenfelder, with whom was Asst. Atty. Gen., Harlington Wood, Jr., for defendant.

Edgar H. Brenner, Washington, D. C., attorney of record, for third-party defendant. James A. Dobkin and Arnold & Porter, Washington, D. C., of counsel.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.

OPINION

PER CURIAM:

This case comes before the court on exceptions by the third-party defendant to a recommended decision filed January 18, 1973, by Trial Commissioner Louis Spector pursuant to Rule 134(h). No exceptions were filed by defendant. The court has considered the case on the briefs and oral argument of counsel for plaintiff and the third-party defendant. Since the court agrees with the trial commissioner's decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is entitled to recover the contract balance in the sum of $52,000.74 and judgment is accordingly entered for plaintiff in that amount.

OPINION OF COMMISSIONER

SPECTOR, Commissioner:

This case has been before the court on two prior occasions, and is now ripe for decision on the merits. The first opinion¹ was occasioned by motion of the third party defendant, Bank of America (hereinafter the Bank), to dismiss or stay proceedings as to it on the ground that the court lacked jurisdiction to summon the Bank to appear and assert and defend its interest in the suit.² The motion was denied in an opinion which affords a prelude for this consideration on the merits. In its opinion the court set forth certain "facts essential to the disposition of the motion which are not in dispute." This recitation of the facts has been confirmed by the trial which followed. They are hereinafter quoted from that opinion in the interest of continuity, and because defendant's brief now appears in some minor instances to disavow them.

In January 1956 1965, a joint venture known as "James L. Wennermark d/b/a Wennermark Co. & Emmett J. Harris" contracted with the Department of the Interior for construction work on a levee extension. Plaintiff was the Miller Act (40 U.S. C. § 270a et seq. (1964))³ surety for the joint venture, and when it defaulted on the contract on July 29, 1965, plaintiff effected the completion of the contract work as required by its bond.

The present dispute centers around a check for $52,000.74 issued by defendant on June 7, 1965, payable to the order of the joint venture in the name "Wennermark Co. and Emmett J. Harris," in partial payment of work performed on the contract.⁴ The check was endorsed and negotiated at the Highland Branch of the Bank of America, San Bernardino, California. Precisely who endorsed the check, who negotiated it at the bank, and what authority he had to do so, are among the key factual issues which are to be decided later and are not now before us. Emphasis supplied.⁵

On June 17, 1965, at the request of the joint venture and the attorney for plaintiff, the Treasurer of the United States ordered payment stopped on the check. When the Bank forwarded the check for payment, it was returned with a notation that payment had been stopped at the request of the joint venture. On July 7, 1965, the joint venture filed a claim against defendant for the proceeds of the check. On August 3, 1965, subsequent to the default of the joint venture on its contract,⁶ Emmett J. Harris executed an assignment of his interest in the proceeds of the check to plaintiff. On April 12, 1967, James L. Wennermark, on behalf of Wennermark Company and Emmett J. Harris assigned to plaintiff all right, title and interest in any claims they might have against E. F. Wennermark and his wife arising out of the check of $52,000.74, which check, according to the assignment, had been wrongfully and without authority converted and the proceeds disposed of by E. F. Wennermark and his wife.⁷

On October 22, 1965, Bank of America wrote to the Treasurer of the United States requesting that payment of the proceeds of the check be made to it. The Treasury Department replied that the check would not be paid until a court of competent jurisdiction made a determination "establishing the party entitled."

Plaintiff sued the defendant in this court, alleging that as the contractor\'s surety, it had completed the contract and paid the creditors of the joint venture pursuant to the surety\'s performance and payment bond at a total expense of $91,319.16.⁸ Plaintiff further alleges that it thereby acquired equitable rights to the $52,000.74 held by the defendant as the unpaid balance due on the contract, and that plaintiff\'s rights to the fund are superior to the rights of any other party. * * * We hold that our jurisdiction extends to the claim asserted by plaintiff against defendant and, further, that we have jurisdiction to determine whether the plaintiff or the Bank is entitled to recover the contract balance now held by the defendant.

* * * Plaintiff\'s petition plainly states a cause of action for recovery of a contract balance now held by the Government in a stakeholder capacity. * * * Emphasis supplied.⁹

The second occasion on which this case was before the court followed the Bank's motion and plaintiff's cross-motion for summary judgment. Following oral argument, the court found "that there are material issues of fact with respect to the liability of defendant to plaintiff or the third party and with respect to whether plaintiff or the third party has a superior right to the fund held by defendant." The motions were denied and the case "remanded to the trial commissioner for trial or other disposition of all issues of fact, including the amount, if any, which plaintiff or the third party is entitled to recover * * *."¹⁰

The facts upon which these issues hinge are as follows: One of the two joint venturers (James L. Wennermark d/b/a Wennermark Company) had a confused and obscure background. In 1960 or 1961, James L. (Leroy) Wennermark, in his own name, applied for and was issued a State of California contractor's license to do business as Wennermark Company. During this same period, James L. Wennermark executed a general power of attorney to his father, Elmer Floyd Wennermark, which authorized E. F. Wennermark, among other things, "to make, do, and transact all and every kind of business of what nature or kind soever" in James L. Wennermark's name. At the time of the trial, James L. Wennermark had no personal independent recollection of having signed the power of attorney. Only after much hesitation did he identify the signature on the power of attorney as his own. There is no reliable proof that the power of attorney was ever placed on file with any third party.

The elder Wennermark, E. F. Wennermark, was sometimes known as "Jim" Wennermark by his friends and associates. He was not, however, ever known as "James L. Wennermark." E. F. Wennermark obtained the power of attorney from his son because he had been adjudicated a bankrupt in 1951 or 1952 and, in the State of California, this barred him from procuring a license to engage in the construction business.

James L. Wennermark first became associated in business with his father in January 1962 when he went to work for a joint venture comprised of the Wennermark Company and one Ralph B. Slaughter. Later, in December 1964, the joint venture involved in this case was formed and designated Wennermark Company & Emmett J. Harris. No written joint venture agreement was offered in evidence. No reliable testimony was given as to the terms of the agreement, other than the testimony of Emmett Harris that "we had something we put down in writing, what each piece of equipment would receive per month for the job." E. F. Wennermark negotiated the joint venture agreement with Emmett Harris. At the time of the formation of the joint venture, Harris believed the elder Wennermark to be the owner of Wennermark Company, and only subsequently did Harris learn that the company's license to do business was in the younger Wennermark's name, i. e., James L. Wennermark d/b/a Wennermark Company.

Both Emmett Harris and E. F. Wennermark contributed $1,000 or $2,000 to the joint venture. In addition, Harris contributed several trucks and a bulldozer, and E. F. Wennermark contributed a loader and bulldozer. Insofar as can be determined, the profits of the joint venture were to be shared 50 percent each between Emmett Harris and E. F. Wennermark. James L. Wennermark did not directly share in the profits or losses of the business. According to the testimony, the younger Wennermark was "paid on different methods at different times." He "generally drew — took a draw against the company."

The joint venture bid on the Government contract here involved was signed "James L. Wennermark" by E. F. Wennermark. A bid supplement was also submitted and signed "James L. Wennermark-(Partner)" by E. F. Wennermark. The bid bond submitted with the bid was signed by both E. F. Wennermark and Emmett J. Harris, the elder Wennermark signing the name "James L. Wennermark." Harris and the elder Wennermark had apparently prepared the bid. The contract with the Department of the Interior was executed for the joint venture by E. F. Wennermark, signing "James L. Wennermark, Partner." E. F. Wennermark also signed the name "James L. Wennermark" to the performance bond and to the payment bond.

However, E. F. Wennermark's responsibilities with respect to the joint venture of Wennermark Company & Emmett J. Harris, and specifically with respect to this contract, appear to have been ministerial in nature for the most part. Any activity on the part of ...