Martin v. National Surety Co.

• Decision Date: 12 August 1936
• Docket Number: No. 10536.,10536.
• Citation: 85 F.2d 135
• Parties: MARTIN v. NATIONAL SURETY CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F.2d 135 (1936)

MARTIN v. NATIONAL SURETY CO. et al.

No. 10536.

Circuit Court of Appeals, Eighth Circuit.

August 12, 1936.

Richard S. Bull, of St. Louis, Mo. (Carter & Jones, of St. Louis, Mo., on the brief), for appellant.

J. H. Cunningham, Jr., of St. Louis, Mo. (Otto O. Fickeissen, Banister, Leonard, Sibley & Susman, Blackinton, Reid & Harris, David K. Breed, Felix Cornitius, Cullen, Fauntleroy & Edwards, Curlee & Teasdale, and Sam M. Degen, all of St. Louis, Mo., Roscoe Forth, of Granite City, Ill., and Greensfelder & Grand, Herbert F. Hahn, Frank H. Haskins, Igoe, Carroll, Higgs & Keefe, Wm. T. Keil, J. E. King, Rassieur, Kammerer & Rassieur, E. H. Schwarzenbach, and Frank A. Zeis, all of St. Louis, Mo., on the brief), for appellees.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

SANBORN, Circuit Judge.

Albert C. Tobin (hereinafter referred to as the contractor) on February 12, 1932, entered into an agreement with the United States to construct a post office building at Carlinville, Ill. The contract price of $49,500 was to be paid as the work progressed, upon monthly estimates, subject to a deduction of 10 per cent. to be retained by the government until the completion and acceptance of the work. The contractor's bond was written by the National Surety Company (hereinafter called the surety) through its agent, the appellant, Guy S. Martin. The bond, as required by statute (40 U.S.C. § 270 40 U.S.C.A. § 270), provided that the contractor "shall promptly make payments to all persons supplying him or them the principal with labor and materials in the prosecution of the work provided for in such contract."

In his application for the bond, the contractor agreed not to assign any payments under the contract and to indemnify the surety for any loss it might sustain; he assigned to the surety "all the deferred payments and retained percentages, and any and all moneys and properties" that might be due him at the time of any breach or default in the contract or that might thereafter become due, to be credited upon any loss sustained by the surety because of the bond; and agreed that, if the surety was required to reserve from its assets an amount to cover any contingent claim or claims arising from his default, he would deposit sufficient funds with the surety to cover such claims. Martin, as agent for the surety, executed this bond, contrary to the instructions of the surety, and the premium was never paid. The surety is now insolvent.

During the construction of the building, the contractor needed financial assistance to enable him to carry on the work, and Martin, who had helped him financially in connection with a prior construction contract, advanced various amounts over a period of several months. By December, 1932, when the building was nearing completion, Martin had advanced to the contractor, for use in constructing the building, an amount in excess of $10,000. The evidence is not entirely clear as to whether all of this money was used in the performance of the contract for the construction of the Carlinville post office. It is safe to say that not all of it was expended for labor and material.

In October, 1932, the surety first received notice that the contractor had failed to pay claims for labor and material. During the following November and December, the surety received further notice of the nonpayment by the contractor of such claims. On December 20, 1932, the contractor called upon the surety. The surety demanded of him that it be given control of the disbursement of retained percentages, deferred payments, and any money due or to become due from the government under the contract, and asked him to execute a power of attorney to it. After promising to consult his counsel and then to bring in the suggested power of attorney, the contractor went to Martin and gave him a power of attorney, which Martin sent to Washington accompanied by a letter from the contractor requesting that checks payable to him be sent to Martin.

When the December, 1932, and January, 1933, estimates, aggregating $10,448.10, were approved by the proper government officer, the contractor sent Martin to Washington to collect this money. At that time the surety did not know that Martin had a power of attorney from the contractor. The amount of these estimates was paid to Martin on February 6, 1933. The building was then substantially completed, and the government was in possession. There was a balance of $5,700 due the contractor, after deducting the progress payments made to Martin, which balance was the retained percentage, plus a small sum withheld by the government to cover unfinished work.

On February 9, 1933, the day after the surety learned of the payment of the December and January estimates to Martin, it brought this suit in equity to enjoin the payment to Martin or the contractor of the balance still due from the government under the contract, to require that such payment be made to the surety for the benefit of laborers and materialmen, and to compel Martin to pay into court, for the benefit of the surety and of creditors having unpaid claims for labor and material, the $10,448.10 received by him from the government. The court granted a temporary injunction preventing Martin and the contractor from collecting anything more from the government, and directed Martin to deposit with the clerk of the court $9,000 of the $10,448.10 collected by him. Thereafter Martin and the contractor filed their joint answer, admitting that Martin had collected $10,448.10 due upon the December and January estimates, and alleging that Martin had collected it in order to reimburse himself in part for what the contractor owed him; that $10,405.65 of the amount which was due Martin from the contractor was for money advanced in connection with the construction of the building here involved, plus interest upon such advances; that Martin's lien on the proceeds of the contract was at least of equal standing with that of the surety, if the surety had any lien. The defendants (Martin and Tobin) waived any claim upon the balance still due from the government.

On May 2, 1933, the trial court, after finding that the government still owed the contractor $5,700, and that labor and material claims unpaid were in excess of $15,000, entered a decree, (1) making the temporary injunction theretofore issued permanent; (2) authorizing the plaintiff surety to collect the balance due under the contract and to deposit it in court "to abide further orders as to the disposition of said funds"; (3) directing Guy S. Martin to pay $1,448.10 into court "to be deposited by the Clerk of said Court with the $9,000.00 heretofore ordered paid into Court by the defendant, Guy S. Martin, said deposit to abide further orders as to the disposition of said fund"; (4) dismissing the plaintiff's complaint as against certain other defendants; (5) reserving to the court "the right to enter such further orders and decrees in this cause as may be necessary in the premises"; and (6) taxing costs against the defendants Tobin and Martin.

In January, 1934, the surety petitioned the court for an order fixing the time for filing claims. An order was entered requiring verified claims to be filed on or before March 24, 1934. On that date, Martin filed his "Exceptions, and in the event they are overruled, Proof of Debt, of Guy S. Martin," by which he excepted to the order fixing the time for filing claims, on the ground that he was entitled to the entire fund, but asserted a claim to $10,405.65 in the event his exceptions were overruled. Other claimants filed exceptions to Martin's claim on various grounds, one of which was that the decree of May 2, 1933, was an adjudication that he had no right to the fund or any portion thereof.

The court duly considered Martin's claim, and found that he was entitled to nothing because (1) he was a partner of the contractor and his (Martin's) claim was inferior to those of the laborers and materialmen; (2) his collection of the estimates was a fraud upon the rights of creditors of the contractor, and the contractor's execution to Martin of the power of attorney was a fraud upon the surety and upon those who had furnished labor and material; (3) the claims for labor and material were superior to the claim of Martin and exceeded the fund deposited, and the surety company was insolvent; (4) Martin's hands were not clean, because, in a suit by the Maryland Casualty Company against Martin and Tobin, Martin had testified that of the advances which he claimed to have made to Tobin in connection with the performance of the work here involved the sum of $5,672 covered amounts expended in connection with other work done by the contractor at Havana, Ill.; (5) Martin did not furnish labor or material, but merely loaned money to the partnership enterprise.

Thereupon the trial court entered a decree rejecting Martin's claim and directing the disbursement of the fund in court to claimants whose claims had been allowed. These claims were those of laborers and materialmen.

From this decree, Martin alone appealed, naming as appellees the surety and all claimants whose claims had been allowed.

Some eight claimants, who were nonresidents of Missouri and had no attorneys of record, were served with citation on appeal through a trustee appointed for them by the trial court. Appellees contend that such service was insufficient, and that the appeal should therefore be dismissed. It does not appear that the method adopted for securing service was ineffectual or prejudicial. The record does not show whether the claimants so served have appeared generally in this court or not.

The purpose of the issuance and the service of a citation on appeal is to give notice and opportunity to appear. Mattingly v. N. W. Virginia Railroad Co., 158 U.S. 53, 15 S.Ct. 725, 39 L.Ed. 894; Lockman v. Lang et al. (C.C.A.8) 132 F. 1, 4; Mitchell v. Lay et al....