Taylor v. Connett

• Decision Date: 01 November 1921
• Docket Number: 1901.
• Parties: TAYLOR et al. v. CONNETT et al. UNITED STATES, to Use of NORFOLK R. CO., v. D. L. TAYLOR & CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

277 F. 945

TAYLOR et al. v. CONNETT et al.

UNITED STATES, to Use of NORFOLK R. CO., v. D. L. TAYLOR & CO. et al.

No. 1901.

United States Court of Appeals, Fourth Circuit.

November 1, 1921

Clarence A. Tucker, of Baltimore, Md., and Julius F. Duncan, of Beaufort, N.C. (J. N. Ulman and Knapp, Ulman & Tucker, both of Baltimore, Md., on the brief), for plaintiffs in error.

R Clarence Dozier, of Norfolk, Va. (Baird, White & Lanning and Edward R. Baird, Jr., all of Norfolk, Va., on the brief), for defendants in error.

Before KNAPP and WOODS, Circuit Judges, and BOYD, District Judge.

KNAPP Circuit Judge.

In this suit on a contractor's bond, two subcontractors, L. R Connett and the Delaware Dredging Company, filed petitions of intervention. Judgments having been rendered in their favor in the court below, defendants brought the case here on writ of error. Afterwards, and before argument, the Dredging Company's claim was settled and an appropriate order entered; the controversy with that company will therefore be disregarded.

As to Connett's claim these facts appear: In March, 1915, D. L Taylor & Co., a partnership, entered into contract with the United States for the construction of a breakwater and shore connection at Cape Lookout, N.C. The Fidelity & Deposit Company of Maryland became the surety on their bond, which was conditioned for the due performance of the contract and 'full payments to all persons supplying them labor or materials in the prosecution of the work provided for in said contract.'

It is evident from the testimony, and all parties must have understood, that the large amount of stone required, nearly a million and a quarter tons, could not be procured, except at a considerable distance from the site of the breakwater. The stone was in fact brought by rail from the quarry to Morehead City, where it was transferred to scows and towed to destination. It is not open to serious doubt that this was the most feasible arrangement which the conditions permitted. Taylor & Co. contracted with one Seely to do portions of the work, including the furnishing of scows to transport the stone. Seely rented four scows from Connett, and the latter's claim is for the agreed hire of the same and other obligations connected with their use.

As allowed by the trial court, this claim consists of five items, namely, hire of scows, $4,599.50; towing same, $1,519; repairs of damages to the scows, $1,795.25; wages paid to captains, $194.48; and use of scows by Taylor & Co., $284-- or a total of $8,392.21, with interest thereon from July 8, 1918.

The defendants argue that Connett is not entitled to recover: (1) Because there was no contract relation between him and Taylor & Co.; (2) because his claim is for neither 'labor' or 'materials' within the terms of the statute or purview of the bond; (3) because his contract with Seely was breached by himself; and (4) because in any event his rights must be limited to the actual 'user' of the equipment in 'the prosecution of the work,' and no facts are shown from which the quantum of such user can be determined. The first of these contentions is clearly without merit, as will appear from the authorities cited below; the others will be briefly examined.

We may take judicial notice that scows of the kind required were not to be had at Morehead City or in that vicinity, and there was no attempt to show that they could have been procured at any place nearer than New York, where they were in fact obtained and where Connett resided. Seely hired from him two deck scows for $5.50 a day each, and two other scows, described as dumpers, one for $8 and the other for $10 a day, such rental to be paid from the date of delivery in New York until the scows were returned to that port. In addition, Seely agreed to pay for towing the scows from New York to the work and back again, to supply captains therefor, and to make all needed repairs, so that the scows would be in substantially the same condition when restored to the owner as when they were taken by the lessee. One of the scows was delivered in April, 1915; the others, in May of that year. The $4,599.50, charged and allowed, is...