United States ex rel. Samuel Hastings Co. v. Lowrance

• Decision Date: 28 November 1916
• Citation: 236 F. 1006
• Parties: UNITED STATES ex rel. SAMUEL HASTINGS CO. v. LOWRANCE et al.
• Court: U.S. District Court — Eastern District of Arkansas

236 F. 1006

UNITED STATES ex rel. SAMUEL HASTINGS CO. v. LOWRANCE et al.

United States District Court, E.D. Arkansas, Jonesboro Division.

November 28, 1916

Marsilliot & Chandler, of Memphis, Tenn., for plaintiff.

Craft &amp McBee, of Memphis, Tenn., for defendants.

TRIEBER District Judge.

The plaintiff seeks to recover from the defendants W. T. Lowrance & Co. and their sureties on the bond executed to the United States under the provisions of Act Cong. Aug. 13, 1894, c 280, 28 Stat. 278, as amended by Act Feb. 24, 1905, c. 778, 33 Stat. 811, for grain, hay, salt, and feed sold and delivered to a subcontractor of W. T. Lowrance & Co.

The material allegations in the complaint are that the principal defendants, W. T. Lowrance & Co., procured a contract from the United States for the construction of a levee, in this division of the Eastern district of Arkansas, and executed a bond, with their co-defendants, M. J. Roach and C. T Lowrance, as sureties, in accordance with the form prepared by the government officials, and in accordance with the requirements of the acts of Congress. Article 8 of the bond provides:

'The contractor shall be responsible for paying all liabilities incurred for labor and material in the prosecution of the work.'

The proceedings are in conformity with the requirements of the act of Congress of 1905, but no other person than the plaintiff has made himself a party to this proceeding by filing a claim, although due notice, in the manner required by the act of Congress, was given.

Defendants demur to the complaint upon the ground that grain, hay, salt, and feed, which was fed to the horses and mules used by the subcontractor while engaged in the construction of the levee work, are not materials within the meaning of the act of Congress, and therefore there is no liability on the bond. That is the only question before the court.

There can be no doubt but that these acts should be as liberally construed as mechanic's lien laws, for, as stated by the Supreme Court:

'In view of the fact that it was evidently designed to furnish the obligation of a bond as a substitute for the security which might otherwise be obtained by attaching a lien to the property; said lien not being permissible in the case of government work. ' Guaranty Co. v. Pressed Brick Co., 191 U.S. 416, 24 Sup.Ct. 142, 48 L.Ed. 242; Hill v. American Surety Co., 200 U.S. 197, 203, 26 Sup.Ct. 168, 50 L.Ed. 437.

That mechanic's lien laws are to be liberally construed, for the purpose of protecting workmen, contractors, and materialmen, is the general rule, and especially in this circuit. Hooven, Owens & Rentschler Co. v. John Featherstone's Sons, 111 F. 81, 92, 49 C.C.A. 229, 240; Russell v. Hayner, 130 F. 90, 64 C.C.A. 424; Mellon v. St. Louis Union Trust Co., 225 F. 693, 699, 140 C.C.A. 567, 575.

The only reported case which the court has been able to find in which the identical question was determined by any court under this act of Congress, and that was the act of 1894, is United States v. Fidelity & Deposit Co., 169 Ill.App. 1. In that case it was held, in a very carefully prepared opinion, reviewing numerous authorities, that such articles are not materials furnished in the prosecution of the work, within the meaning of this statute, and therefore no liability on the bond for them.

There are a number of decisions of the national courts, some by Circuit Courts of Appeals, others by Circuit and District Courts, which, while not directly in point, the material there furnished, and for which a recovery was sought on the bond executed under these Acts, being other than such as are involved in this action, yet in the opinion of the court the principles established in those cases are by analogy applicable to the question involved in the instant case. The last reported case on that question is National Surety Co. v. United States, 228 F. 577, 143 C.C.A. 99 (6th Cir.). In that case one of the questions involved was whether groceries and provisions furnished to a boarding house of a contractor, and consumed by his laborers while employed on the work under contract, were materials within the meaning of the act of Congress secured by the contractor's bond, and it was held that they were not. The opinion of the court is a very able one and reviews a large number of cases, theretofore decided. A petition for certiorari was denied by the Supreme Court. Brogan v. National Surety Co., 241 U.S. 670, 36 Sup.Ct. 721, 60 L.Ed. 1230.

Cases in which similar questions were involved and which counsel have cited to the court, are Standard Oil Co. v. City Trust Co., 21 App.D.C. 369; American Surety Co. v. Lawrenceville Cement Co., 110 F. 717 (C.C.); United States v. Morgan, 111 F. 474 (C.C.); United States v. Kimpland, 93 F. 403 (C.C.); United States v. Hyatt, 92 F. 442, 34 C.C.A. 445 (5th Cir.); City Trust, etc., Co. v. United States, 147 F. 155, 77 C.C.A. 397 (2d Cir.); Title Guaranty, etc., Trust Co. v. Puget Sound Engine Works, 163 F. 168, 89 C.C.A. 618; United States v. Illinois Surety Co., 226 F. 653, 141 C.C.A. 409. All of these arose under this same act of Congress, although some before the amendatory act of 1905, which in no wise affects the issues in this case.

In Standard Oil Co. v. City Trust Co., the material furnished, for which the claim was made, was lubricating oil used in the operation of a dredge, and it was held that, as the oil was used for the preservation of the dredge, and not for the purpose of doing any of the contracted work, the claim could not be sustained.

In United States v. City Trust Co., 23 App.D.C. 153, the same court disallowed a claim for coal furnished for the operation of a dredging machine employed in the work.

The correctness of these rulings is doubted by the United States Circuit Court of Appeals for the Second Circuit, in City Trust Co. v. United States, 147 F. 155, 77 C.C.A. 397, and in my opinion properly so, as coal and oil used in operating the machinery employed for the purpose of performing the contracted work, and consumed at the time, may well be classed with the so-called 'powder cases,' hereinafter referred to.

In the Hyatt Case, it was held that a railway company, carrying stone to the place where the work was being done, was not entitled to maintain an action on the bond for freight charges.

In American Surety Co. v. Lawrenceville Cement Co., supra, claims for fitting out a steam launch used in transporting merchandise for the work contracted, the construction of dump cars, skips, grout tubs, and conveyors for use on the work, were held not materials within the meaning of the statute.

In United States v. Morgan, the following articles were held not to be within the meaning of the law; nails used for the construction of a camphouse, and repairs on a steam launch used for transporting material; construction of dump cars and other articles of a similar nature to those in the Lawrenceville Cement Co. Case; rails, spikes, and fish plates for a track to transport the earth and rock excavated; wire, steel, and rope for setting up and sustaining derricks for hoisting and excavating; material for sheds used for storing the articles used in the contracted work; tools, shafting, pulleys, and material of that nature used to operate the mixer of the cement; materials used in constructing sheds and premises for storing the material used.

In the Kimpland Case, board and lodging furnished laborers employed on the work was held not within the meaning of the act.

In Puget Sound Engine Works Case, a claim for patterns used for the castings which went into the vessel was made, and it...