United States, for Use of Samuel Hastings Co., v. Lowrance

• Decision Date: 28 June 1918
• Docket Number: 4924.
• Citation: 252 F. 122
• Parties: UNITED STATES, for Use of SAMUEL HASTINGS CO., v. LOWRANCE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

252 F. 122

UNITED STATES, for Use of SAMUEL HASTINGS CO., v. LOWRANCE et al.

No. 4924.

United States Court of Appeals, Eighth Circuit.

June 28, 1918

C. L Marsilliot, of Memphis, Tenn. (Walter C. Chandler, of Memphis, Tenn., on the brief), for plaintiff in error.

Henry Craft, of Memphis, Tenn., for defendants in error.

Before HOOK, SMITH, and STONE, Circuit Judges.

HOOK Circuit Judge.

This is an action upon the bond of a contractor for prompt payment 'to all persons supplying labor and materials in the prosecution' of a public work. Act Aug. 13, 1894, c. 280 28 Stat. 278, amended by Act Feb. 24, 1905, c. 778, 33 Stat 811. The contract was for the construction of a levee along the Mississippi river in Eastern Arkansas. The complaint stated that a subcontractor for a part of the work necessarily used a large number of horses and mules in hauling and dumping earth for the embankment, and that the claimant's demand was for hay, grain, salt, and feed furnished for and consumed by the animals while so employed. The trial court held that the materials were not within the statutory bond and sustained a motion to dismiss. 236 F 1006.

The act of Congress and the surety bonds given according to its provisions should be liberally, not narrowly, construed. The typical lien laws of the states and the decisions of the courts upon them should for the most part be put aside. Generally they limit the labor to direct employment on the work and the materials to those which have become constituents of the completed structure. The language of the act of Congress, 'labor and materials in the prosecution of the work,' is of broader import and embraces much that is not directly reflected or physically discernible in the resulting permanent structure. It is sometimes difficult to determine whether given labor or materials have relation to the object of the contract and the process of its accomplishment sufficiently intimate for protection. Cases vary so greatly that no definite rule of exclusion and inclusion can safely be stated. Much depends upon the character of the public work, the scope of the contract, and the circumstances of its performance. Sometimes the last of these factors is not given its due influence.

The following have been held included: Trucking from a steamer landing on an island where the work was to be done to the particular locality of the work. American Surety Co. v. Lawrenceville Cement Co. (C.C.) 110 F. 717. Coal supplied to a contractor and used to operate hoisting and pumping engines employed in the performance of a contract for the construction of a dry dock. City, etc., Trust Co. v. United States, 147 F. 155, 77 C.C.A. 397. Drawings and patterns made for the contractor constructing a steam vessel for the United States, from which to make molds and castings; also towing in the delivery of materials, wharfage paid in connection with such delivery, and the local transfer or hauling of materials. Title Guaranty & Trust Co. v. Engine Works, 163 F. 168, 89 C.C.A. 618. The case last cited was affirmed by the Supreme Court. Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24, 31 Sup.Ct. 140, 55 L.Ed. 72. Use of equipment in the erection of a naval training station. United States v. Illinois Surety Co., 226 F. 653, 141 C.C.A. 409. In affirming this case the Supreme Court said:

'The specific objection made to the claim of the United States Equipment Company, for

...