Lasley v. United States
| Decision Date | 31 January 1961 |
| Docket Number | No. 18544.,18544. |
| Citation | 285 F.2d 98 |
| Parties | Morris W. LASLEY, doing business as Lasley Construction Company, et al., Appellants, v. UNITED STATES of America, for the Use of C. C. WESTERMAN, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank H. Hunter, El Paso, Tex., Edwards, Belk, Hunter & Kerr, El Paso, Tex., for appellants.
William C. Collins, Collins, Langford & Pine, El Paso, Tex., for appellee.
Before TUTTLE, Chief Judge, and RIVES and JONES, Circuit Judges.
Appellee instituted this action under the provisions of the Miller Act, 40 U.S. C.A. §§ 270a-270d. His petition alleged that certain sums were due him as a subcontractor on a Capehart Housing Project located at Fort Bliss, Texas.
Appellants, defendants below, moved the district court to dismiss the suit on the ground that the court was without jurisdiction to hear the case. The court held that jurisdiction was conferred upon it by the Miller Act, and accordingly overruled the motion. The case was submitted to the jury upon special interrogatories and judgment was entered against appellants in the sum of $15,237.66. From that judgment this appeal is taken; we find that the only substantial question raised by appellants before this Court relates to the jurisdiction of the district court to entertain this suit.
Performance and payment bonds are required by the Miller Act "Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person". 40 U.S.C.A. § 270a. That statute further provides:
"Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy in such suit * * *." 40 U.S.C.A. § 270b(b).
Similar bonds are required under the Capehart Act, which provides for the construction of housing facilities for military personnel. So far as construction contracts are concerned, that statute, in part, provides:
"* * * Any such contract shall provide for the furnishing by the contractor of a performance bond and a payment bond with a surety or sureties satisfactory to the Secretary of Defense, or his designee, and the furnishing of such bonds shall be deemed a sufficient compliance with the provisions of section 270a of Title 40, and no additional bonds shall be required under such section. * * *." 42 U.S.C.A. § 1594(a), (Emphasis supplied).
The gist of appellants' argument is that since the bonds in controversy were not executed pursuant to the Miller Act and since a similar...
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...be brought under the Miller Act, and that the latter Act grants the court jurisdiction to hear the case. Lasley v. United States for Use of Westerman, 285 F.2d 98 (5th Cir., 1960) (alternate holding); United States to Use of Acme Furnace Fitting Co. v. Ft. George G. Meade Defense Housing Co......
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