Joseph A. Bass Company v. United States

• Decision Date: 02 February 1965
• Docket Number: No. 17698.,17698.
• Citation: 340 F.2d 842
• Parties: JOSEPH A. BASS COMPANY, a Corporation, and St. Paul Fire and Marine Insurance Company, a Corporation, Appellants, v. UNITED STATES, to the Use of PETER KIEWIT SONS' COMPANY, a Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.2d 842 (1965)

JOSEPH A. BASS COMPANY, a Corporation, and St. Paul Fire and Marine Insurance Company, a Corporation, Appellants, v. UNITED STATES, to the Use of PETER KIEWIT SONS' COMPANY, a Corporation, Appellee.

No. 17698.

United States Court of Appeals Eighth Circuit.

February 2, 1965.

Edmund T. Montgomery, of Richards, Montgomery, Cobb & Bassford, Minneapolis, Minn., made argument for appellants and filed brief with E. F. Engebretson, of Cox, Pearce, Engebretson, Murry & Anderson, Bismarck, N. D.

F. J. Smith, of Fleck, Smith, Mather, Strutz & Mayer, Bismarck, N. D., made argument for appellee and filed brief with John J. Hogan, Omaha, Neb.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

MATTHES, Circuit Judge.

In this Miller Act case, Title 40 U.S.C. §§ 270a-270d, Joseph A. Bass Company, contractor, and St. Paul Fire and Marine Insurance Company, surety on its payment bond, have appealed from the judgment dismissing Bass' counterclaim in which it sought a judgment against Peter Kiewit Sons' Company in the sum of $45,896.12.¹

Bass was the prime contractor with the United States for the construction of dormitories at Minot Air Force Base, Minot, North Dakota. Kiewit was a subcontractor for furnishing the labor, material and equipment for construction of a portion of the project — all in accordance with the terms and conditions of a written contract with Bass. A separate oral agreement was entered into between the same parties whereby Kiewit agreed to furnish all the ready-mix concrete required for construction at a cost of $19.08 per cubic yard. Specifications were issued by the Government covering all phases of the project, and a copy of the specifications relating to the concrete construction was delivered to Kiewit.

On August 25 and August 28, 1959, Kiewit delivered 130.5 yards of ready-mix concrete to Bass which was used in constructing structural slabs at the second floor level. The slabs served as the floor for the second story and as the ceiling for all the first floor rooms in Dormitory 69. On September 2, 1959, the slabs were inspected, and a series of cracks appeared in both sides thereof. The cracking, weblike in appearance, was quite extensive. Under date of September 2 the Area Engineer of the Army Corps of Engineers advised Bass by letter that "the above referenced floor slabs are not in conformance with the contract requirements, and are not acceptable. * * * This is not a stop order." Bass suspended construction work adjacent to the slabs until September 16, 1959, but during the suspension period work progressed on other parts of the project.

Kiewit instituted this action on February 13, 1963, seeking to recover $21,328.17 alleged to be the balance due for labor and materials furnished under its subcontract. Bass interposed its counterclaim, sounding in breach of contract, breach of an implied warranty of fitness and negligence. The issues were tried to the Court, Judge Register, who found for Kiewit on its cause of action² and found against Bass on the counter-claim. Both parties appealed, but thereafter, pursuant to stipulation, we entered an order dismissing Kiewit's appeal.

In support of its ultimate judgment of dismissal of the counter-claim, findings of fact were filed, which in summary are (1) that the concrete furnished by Kiewit was in accordance with Government specifications, and that there was no proof of negligent processing of the concrete by Kiewit or its supplier; (2) that Bass had failed to prove by the preponderance of the evidence that the concrete was not fit for the purpose intended; (3) that while Bass was not permitted to make pours of concrete adjacent to the pours of August 25 and 28 on Dormitory No. 69, such withholding of permission was by Government inspectors and not by Kiewit; that the concrete was subsequently accepted by the Government and payment therefor was made to Bass; (4) that Bass failed to prove breach of warranty, breach of contract or negligence on the part of Kiewit; (5) that Bass failed to establish or prove any damage resulting from the concrete.

The propriety of the court's findings are challenged by the appellant. Indeed, it is manifest from the numerous points presented that the root question for determination is whether the court's findings are clearly erroneous within the meaning of Rule 52, Fed.R.Civ.P. We have repeatedly applied the definition of "clearly erroneous" enunciated by the Supreme Court in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948): "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." e. g. Western Casualty & Surety Company v. Herman, 318 F.2d 50 (8 Cir. 1963); Mothner v. Ozark Real Estate Company, 300 F.2d 617 (8 Cir. 1962). Recently, we observed that a heavy burden is cast upon the party who seeks to set aside findings of fact of the trial court. Warnecke v. MacDonald Construction Company, 323 F.2d 715, 716 (8 Cir. 1963).

Whether there was an implied warranty of fitness, as contended by appellant, or whether the quality of the concrete was required to be determined in light of the government specifications, as asserted by appellee, is not of decisive importance. The trial court recognized and discussed all of appellant's pleaded theories in its memorandum opinion, stating:

"There is, in the court\'s opinion, an absence of any substantial proof that the concrete furnished by the plaintiff failed to comply with government specifications, * * * There is also, in the court\'s opinion, an absence of any substantial proof of negligent processing of the said cement by the plaintiff or its supplier. This leaves the issue of whether the defendant has sustained its burden of proving that the plaintiff breached a

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