JF White Engineering Corporation v. United States

• Decision Date: 22 December 1962
• Docket Number: 7032.,No. 7031,7031
• Parties: The J. F. WHITE ENGINEERING CORPORATION, and General Insurance Company of America, Appellants, v. UNITED STATES of America for the Use of PITTSBURGH PLATE GLASS COMPANY, Appellee. UNITED STATES of America for the Use of PITTSBURGH PLATE GLASS COMPANY, Cross-Appellant, v. The J. F. WHITE ENGINEERING CORPORATION, and General Insurance Company of America, Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

311 F.2d 410 (1962)

The J. F. WHITE ENGINEERING CORPORATION, and General Insurance Company of America, Appellants, v. UNITED STATES of America for the Use of PITTSBURGH PLATE GLASS COMPANY, Appellee.

UNITED STATES of America for the Use of PITTSBURGH PLATE GLASS COMPANY, Cross-Appellant, v. The J. F. WHITE ENGINEERING CORPORATION, and General Insurance Company of America, Cross-Appellees.

Nos. 7031, 7032.

United States Court of Appeals Tenth Circuit.

December 22, 1962.

Harold B. Wagner, Denver, Colo. (Raymond A. Wagner and Carl A. Wyers, Denver, Colo., on the brief), for appellants and cross-appellees.

William E. Kenworthy, Denver, Colo. (Fugate, Mitchem, McGinley & Hoffman, Denver, Colo., on the brief), for appellee and cross-appellant.

Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.

PICKETT, Circuit Judge.

This is a case under the Miller Act, 49 Stat. 793, (1935), 40 U.S.C.A. § 270a et seq., in which Pittsburgh Plate Glass Company, a subcontractor, seeks to recover a balance alleged to be due under its subcontract from the J. F. White Engineering Corporation and its bondsman. White was the prime contractor for the construction of two heating plant buildings at the United States Air Force Academy at Colorado Springs, Colorado. Pittsburgh's subcontract required it to furnish the glass and do the glazing work for these two buildings according to the specifications of the prime contract which provided that, upon completion of the work, labels, paint and smears were to be removed, and the glass washed clean. Pittsburgh concedes that its subcontract obligated it to clean the glass and window frames after installation, as specified in the prime contract. The dispute here arises from the claim of White that, as a result of Pittsburgh's failure to do the necessary cleaning, White was required to expend $2700 to have it done, and could, therefore, withhold that amount from the balance due on the subcontract. The trial court held that Pittsburgh had complied with the cleaning requirements of the subcontract in all respects, except one for which a credit of $500 was allowed, and a judgment for $2200 was entered for Pittsburgh. Both parties have appealed.

The record indicates that Pittsburgh substantially performed the contractual requirements relating to the glass and glazing work during the year 1957. Early in 1958 White demanded that Pittsburgh do the necessary cleaning work. After considerable discussion and correspondence, Pittsburgh employed a third party to do the cleaning which was completed in April of 1958. A number of witnesses testified that after Pittsburgh's employees had completed their work, the windows were clean, and, although there was constant inspection by government inspectors, there is no indication that the work was not at that time satisfactory to the United States.¹ There is evidence that after Pittsburgh had finished the cleaning, other workmen in the buildings engaged in painting and spraying work which had nothing to do with Pittsburgh's glass work.² The clear inference from this evidence is that, between the time that Pittsburgh completed its work and the completion of the contract, other activities by White, not related to the work of Pittsburgh, created conditions which required additional cleaning. The prime contract provided that the work on the project would not be accepted until approved by the contracting officer representing the United States. Several months after Pittsburgh had completed the glass and glazing work the United States notified White that additional cleaning of the windows and frames was necessary before the job would be accepted, and final payment made. Pittsburgh refused to do any further cleaning, and White expended $2700 for this work before the job was approved.

We agree with the findings of the trial court that when Pittsburgh had completed its work in compliance with its subcontract, including the necessary cleaning as demanded by White, it was not obligated to perform further cleaning which was thereafter necessitated by workmen doing other work for White. Fanderlik-Locke Co. v. United States for the Use of Morgan, 10 Cir., 285 F.2d 939, cert. denied 365 U.S. 860, 81 S.Ct. 826, 5 L.Ed.2d 823; United States for the Use of Ardmore Concrete Material Co. v. Williams, 10 Cir., 240 F.2d 561. The court's findings are sustained by substantial evidence, are not clearly erroneous, and, therefore, must be sustained on appeal. E. g., Fanderlik-Locke Co. v. United States for the Use of Morgan, supra; Wunderlich Contracting Co. v. United States ex rel. Reischel & Cottrell, 10 Cir., 240 F.2d 201, cert. denied 353 U.S. 950, 77 S.Ct. 861, 1 L.Ed.2d 859.

In its answer White asserted the affirmative defense of accord and satisfaction. This defense was submitted on an agreed statement of facts consisting of correspondence between the parties together with White's statement of the balance due on the subcontract after charging off the $2700 in question. Two...