New Amsterdam Casualty Company v. Mitchell
| Decision Date | 10 March 1964 |
| Docket Number | No. 20391.,20391. |
| Citation | 325 F.2d 474 |
| Parties | NEW AMSTERDAM CASUALTY COMPANY, Appellant, v. Raymond C. MITCHELL and L. Cecil Turner, Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert E. Coll, Alfred L. Evans, Jr., James N. Frazer, Atlanta, Ga. for New Amsterdam Cas. Co.; Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., of counsel.
George William Jessee, Sr., Atlanta, Ga., for appellees.
Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.
This case involves a suit on a contractor's performance bond issued by appellant as surety to appellees in the principal amount of $25,000 in connection with a contract dated May 2, 1955 whereunder Ward Builders, Inc. was to construct twenty houses for appellees in Fulton County, Georgia, the contract having a completion date of August 1, 1955.
Ward Builders, Inc., the principal on the bond, defaulted under the contract, and after notice to the surety, appellees engaged another builder to complete the contract. The last of the houses was completed in July, 1956.
Appellant Casualty Company also executed a labor and material payment bond pursuant to the same contract, and after the default, interpleaded all known claimants, paid the principal amount of the bond into court, and was exonerated from any further liability with respect to it. That bond is not here involved, but the claims against it exceeded its face amount. Appellees purchased claims totalling $17,867.10 outstanding at the time of default from laborers and materialmen, and for which liens had been filed, and which were not paid, to the extent of the purchase prices paid, out of the payment bond.
The complaint against the surety here claimed this amount as well as several other items including loss of rentals, additional interest to carry the construction loan during the period of delay, and the cost of additional discount suffered in acquiring permanent loans on the houses when they were finally completed, and were ready for sale. No appeal was taken from an award of $2,085.25 on this latter claim of additional discount paid.
The items involved on this appeal are the awards for the materialmen's and laborers' claims purchased, and for loss of rentals. The District Court after a non-jury trial awarded judgment for appellees in the full amount of the bond, $25,000, on the basis of loss of rentals in the amount of $21,433.99, $14,006.39 on the purchased claims, and the additional discount item of $2,085.25; the total of these exceeding the bond. There was no ruling on the interest claim, it apparently being treated as covered by the claim for loss of rentals. There was, however, a finding of fact that $2,979.14 in additional interest on the construction loan was paid due to the default and delay.
This appeal asserts error first on the rental award as being based on an improper measure of damages, and second, as to $8,936.61 of the total award of $14,006.39 on the purchased claims as being unsupported by competent and admissible evidence. Error is also assigned on the admission of certain documentary evidence in connection with the purchased claims.
We affirm without elaboration as to the purchased claims, and the documentary evidence question. The evidence to support each of the claims in the amount of the purchase price awarded was ample, and there was no prejudicial error in the admission of the documentary evidence of which appellant complains. There was proof of the purchase of and the payment for the claims by appellees, and of their assignment to appellees; and of the use of the materials in and the application of the labor to the houses in question. The sales of the materials and labor to Ward Brothers were proven among other ways by the vice president of Ward at the time of the purchase and use who also testified that the materials...
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...work was recoverable as ordinary, direct or foreseeable damages), aff'd, 813 F.2d 186, 188 (8th Cir.1987); New Amsterdam Casualty Co. v. Mitchell, 325 F.2d 474, 476 (5th Cir.1963) (in an action on a contractor's performance bond against a surety, the court held that additional interest paid......
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