Southern Construction Company v. Pickard Southern Construction Company v. United States For Use of Pickard
| Decision Date | 05 November 1962 |
| Docket Number | No. 46,46 |
| Citation | 371 U.S. 57,83 S.Ct. 108,9 L.Ed.2d 31 |
| Parties | SOUTHERN CONSTRUCTION COMPANY, Inc., et al., v. PICKARD, doing business as Pickard Engineering Co. SOUTHERN CONSTRUCTION COMPANY, Inc., et al., Petitioners, v. UNITED STATES FOR the USE OF Samuel J. PICKARD |
| Court | U.S. Supreme Court |
William J. Harbison, Nashville, Tenn., for petitioners.
Edward Gallagher, Washington, D.C., for respondent.
Southern Construction Company, one of the petitioners here, was the prime contractor on contracts with the United States for the rehabilitation of certain barracks at Fort Campbell, Tennessee, and Fort Benning, Georgia. There were three contracts covering the Georgia project and one covering the Tennessee project. Pursuant to the provisions of the Miller Act, 49 Stat. 793, as amended, 40 U.S.C. §§ 270a—270d, 40 U.S.C.A. §§ 270a—270d, Southern furnished performance and payment bonds, with Continental Casualty Company, co-petitioner here, as surety. The plumbing and heating subcontractor on both projects was the respondent Samuel J. Pickard, doing business as Pickard Engineering Company. Pickard's primary supplier on both projects was the Atlas Supply Company.
In December 1955, Pickard's men left the Tennessee job before it was fully completed, and shortly thereafter left the Georgia project. Atlas, Pickard's supplier, claimed that $34,520 was due it for materials furnished on the Tennessee job and $104,000 for materials furnished on the Georgia project. Following a conference in August 1956 between Southern officials and representatives of Atlas, Southern paid Atlas $35,000 in exchange for a complete release of all liability of Southern on Pickard's accounts with respect to both the Georgia and Tennessee projects.1
In December 1956, acting under the provisions of the Miller Act, Pickard brought suit, in the name of the United States, in the United States District Court for the Middle District of Georgia against Southern and Continental for recovery of amounts allegedly owing on both the Georgia and Tennessee jobs. In January 1957, Southern filed an answer and a counterclaim in which it alleged that Southern had paid out more than the contract price on both jobs and in which recovery of the excess was sought. The $35,000 payment to Atlas was at that time included in the counterclaim.
The Miller Act, however, requires that suits instituted under its provisions 'shall be brought * * * in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere * * *.' 40 U.S.C. § 270b(b), 40 U.S.C.A. § 270b(b). Since this statute appeared to prohibit an action in the Georgia District Court on the Tennessee project, Pickard in April 1957 filed the present action against petitioners in the United States District Court for the Middle District of Tennessee relating to the Tennessee project only, and by amendment eliminated this part of his claim from the Georgia action.
The Georgia action proceeding to trial in 1959, and according to the findings of the District Court in the present case the $35,000 payment to Atlas was 'dropped' prior to trial from the counterclaim originally asserted in that action. The Georgia suit has not yet proceeded to final judgment, the Georgia District Court in September 1961 having granted Southern's motion for a new trial on its counterclaim.
In the Tennessee action here involved Southern included the $35,000 payment as part of its counterclaim for affirmative relief, and Pickard answered that the counterclaim was barred by 'res judicata.' Southern later waived any claim to affirmative relief in this action and sought only a credit of $34,520 against Pickard's contract claim on the Tennessee project. This figure was the precise amount that had been claimed by Atlas to be due it for materials supplied on this job.
The District Court, in deciding that Pickard was not entitled to any recovery, allowed this $34,520 item as a credit against Pickard's claim, but on this point the Court of Appeals for the Sixth Circuit reversed. 293 F.2d 493. It held that since there had been no allocation of the $35,000 payment as between the Georgia and Tennessee projects the item, under Rule 13(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., was a 'potential compulsory counterclaim' in either of the two suits;2 that when the respon- sive pleading in the...
To continue reading
Request your trial
-
Saunders v. New Capital for Small Businesses, Inc.
...Use & Benefit of Pickard v. Southern Construction Co., Inc. (6th Cir. 1961) 293 F.2d 493, 500, reversed on other grounds by 371 U.S. 57, 83 S.Ct. 108, 9 L.Ed.2d 31; Union Paving Company v. Downer Corporation (9th Cir. 1960) 276 F.2d 468, 470; United States v. Eastport Steamship Corporation ......
-
Bank One, Texas, N.A. v. Taylor
...Taylor never waived this claim, and it was properly considered in the state action. See Southern Constr. Co., Inc. v. Pickard, 371 U.S. 57, 60-61, 83 S.Ct. 108, 110, 9 L.Ed.2d 31 (1962). VII. PUNITIVE The district court awarded Taylor $5.2 million in punitive damages and additional damages ......
-
In re Euro-Swiss Intern. Corp.
...and to achieve resolution in a single lawsuit of all disputes arising out of common matters;" Southern Construction Co. v. Pickard, 371 U.S. 57, 60, 83 S.Ct. 108, 110, 9 L.Ed.2d 31 (1962); Warren G. Kleban Engineering Corp. v. Caldwell, 490 F.2d 800, 802 (5th Cir.1974). See also Moore v. Ne......
-
Genentech, Inc. v. Eli Lilly and Co.
...and to achieve resolution in a single lawsuit of all disputes arising out of common matters", Southern Construction Co. v. Pickard, 371 U.S. 57, 60, 83 S.Ct. 108, 110, 9 L.Ed.2d 31 (1962), is as valid for declaratory action as any other. The Court remarked that the compulsory counterclaim r......
-
The Construction Industry in the U.S. Supreme Court:Part 2, Beyond Contract Law
...Act suit to be tried before resolving an issue of arbitration under the allegedly fraudulent subcontracts); S. Constr. Co. v. Pickard, 371 U.S. 57 (1962) ( per curiam ) (concerning a prime contractor’s counterclaims); Fleisher Eng’g & Constr. Co. v. U.S. ex rel. Hallenbeck, 311 U.S. 15, 17 ......
-
Comity be damned: the use of antisuit injunctions against the courts of a foreign nation.
...action on the one hand, and "preventing lawsuits from becoming unduly complicated" on the other). (95) Southern Constr. Co. v. Pickard, 371 U.S. 57, 60 (1962); see also FRIEDENTHAL ET AL., supra note 94, at 350 (noting that one of the policies of compulsory counterclaims is "the desire to a......
-
CHAPTER 5 ZONING AND MINERAL DEVELOPMENT: HOW TO OBTAIN A CONDITIONAL USE PERMIT AND WHAT TO DO IF A PERMIT IS DENIED
...Products Co. v. City of Los Angeles, 15 Cal. Rptr. 775 (1961), aff'd, 57 Cal. 2d 515, 20 Cal. Rptr. 638, 270 P.2d 342 (1962), app dismd., 371 U.S. 57 (1962). [90] Baum v. Denver, 147 Colo. 104, 363 P.2d 688 (1961); see generally Anderson, American Law of Zoning, supra, §§ 3.20-3.23. [91] Se......