Nickell v. United States, No. 7689

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtLEWIS, BREITENSTEIN and HILL, Circuit
Citation340 F.2d 117
PartiesCecil NICKELL, d/b/a Cecil Nickell Construction Company, and United Benefit Fire Insurance Company of Omaha, Nebraska, Appellants, v. UNITED STATES of America for the use and benefit of TEXAS VITRIFIED PIPE COMPANY, Appellee. Cecil NICKELL, d/b/a Cecil Nickell Construction Company, and United Benefit Fire Insurance Company of Omaha, Nebraska, Appellants, v. UNITED STATES of America for the use and benefit of TEX-VIT MANUFACTURING COMPANY, Appellee.
Docket Number7690.,No. 7689
Decision Date12 January 1965

340 F.2d 117 (1965)

Cecil NICKELL, d/b/a Cecil Nickell Construction Company, and United Benefit Fire Insurance Company of Omaha, Nebraska, Appellants,
v.
UNITED STATES of America for the use and benefit of TEXAS VITRIFIED PIPE COMPANY, Appellee.

Cecil NICKELL, d/b/a Cecil Nickell Construction Company, and United Benefit Fire Insurance Company of Omaha, Nebraska, Appellants,
v.
UNITED STATES of America for the use and benefit of TEX-VIT MANUFACTURING COMPANY, Appellee.

Nos. 7689, 7690.

United States Court of Appeals Tenth Circuit.

January 12, 1965.


340 F.2d 118

Paul A. Phillips, Albuquerque, N. M., for appellants.

Lon Sailers, of Turner, Rodgers, Winn, Scurlock & Terry, Dallas, Tex. (Olson & Harris, Albuquerque, N. M., on the brief), for appellee.

Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.

HILL, Circuit Judge.

These actions were brought under the provisions of the Miller Act, 40 U.S.C.A. § 270a et seq., by unpaid materialmen against a contractor and his surety to recover for materials furnished to the contractor. The appeals are from judgments in favor of the unpaid materialmen and against the contractor and his surety.

On March 23, 1961, the appellant, Nickell, entered into a contract with the United States Government which provided for the construction by him of sewer facilities on the Zuni Indian Reservation in New Mexico. On the same date Nickell, as principal, and the appellant, United Benefit Fire Insurance Company (United), as surety, executed a standard government form of payment bond to the United States pursuant to the provisions of 40 U.S.C.A. § 270a and, also, a standard government performance bond. The bonds were accepted and the contract was awarded to Nickell.

Subsequent to May 1, 1961, the appellees, Texas Vitrified Pipe Company and Tex-Vit Manufacturing Company, commenced to furnish material to Nickell which he used in constructing the sewer facilities. From that date until December 1, 1961, the appellees furnished material in the total sum of $44,892.44. Nickell was unable to pay for the material and after appellees' demand upon Nickell and United was refused, the instant actions were commenced.

As a defense to the suits, appellants alleged that the Internal Revenue Service had levied upon the proceeds due under the construction contract, for federal taxes owed by Nickell; that the Government honored the levy and refused to pay those proceeds either to Nickell or United; that United's performance bond was...

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3 practice notes
  • United Pacific Ins. Co. v. Wyoming Excise Tax Div., Dept. of Revenue and Taxation, No. 85-15
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Enero 1986
    ...is in lieu of any protection they might receive under state statutes. Nickell v. United States ex rel. Texas Vitrified Pipe Company, 340 F.2d 117, 119 (10th Cir.1965), citing United States ex rel. Sherman v. Carter, supra. The Miller Act provides that all who provide labor or materials to a......
  • Barrett v. United States, No. 249-65.
    • United States
    • Court of Federal Claims
    • 10 Noviembre 1966
    ...793 (1935), as amended, 40 U.S.C. § 270a et seq. (1964). 3 Nickell v. United States for Use and Benefit of Texas Vitrified Pipe Co., 340 F. 2d 117 (10th Cir. 4 Petitioner's claim in the instant case is as subrogee to the claims of the laborers and materialmen whom it has paid. 5 Carryback o......
  • Brown v. Macy, No. 21125.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Enero 1965
    ...which they gave to the investigator and which the Commission considered in reaching its decision. The plaintiff concedes that the 340 F.2d 117 court had no power to review the merits of his dismissal, that being a matter confided to the discretion of the executive branch of the government. ......
3 cases
  • United Pacific Ins. Co. v. Wyoming Excise Tax Div., Dept. of Revenue and Taxation, No. 85-15
    • United States
    • United States State Supreme Court of Wyoming
    • 24 Enero 1986
    ...is in lieu of any protection they might receive under state statutes. Nickell v. United States ex rel. Texas Vitrified Pipe Company, 340 F.2d 117, 119 (10th Cir.1965), citing United States ex rel. Sherman v. Carter, supra. The Miller Act provides that all who provide labor or materials to a......
  • Barrett v. United States, No. 249-65.
    • United States
    • Court of Federal Claims
    • 10 Noviembre 1966
    ...793 (1935), as amended, 40 U.S.C. § 270a et seq. (1964). 3 Nickell v. United States for Use and Benefit of Texas Vitrified Pipe Co., 340 F. 2d 117 (10th Cir. 4 Petitioner's claim in the instant case is as subrogee to the claims of the laborers and materialmen whom it has paid. 5 Carryback o......
  • Brown v. Macy, No. 21125.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 15 Enero 1965
    ...which they gave to the investigator and which the Commission considered in reaching its decision. The plaintiff concedes that the 340 F.2d 117 court had no power to review the merits of his dismissal, that being a matter confided to the discretion of the executive branch of the government. ......

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