United States v. Continental Casualty Company
| Decision Date | 15 June 1961 |
| Docket Number | Civ. No. 836-60. |
| Parties | UNITED STATES of America for the use of FLOW ENGINEERING, INC., Plaintiff, v. CONTINENTAL CASUALTY COMPANY, Malan Construction Corporation, Dean Construction Company, Inc., Malan-Dean Corp., and John R. Monsell, Individually and t/a John R. Monsell Company, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Kahn, Schildkraut & Levy, Nathan Schildkraut, Trenton, N. J., for plaintiff; Melvin Lashner, Philadelphia, Pa., of counsel.
Albert B. Melnik, Camden, N. J., for defendants Margaret D. and John R. Monsell.
Katzenbach, Gildea & Rudner, George Gildea, Trenton, N. J., for Continental Cas. Co., and others; Joseph Neff Ewing, Jr., Philadelphia, Pa., of counsel.
This is a Miller Act proceeding (40 U.S.C.A. § 270a et seq.) filed on behalf of Flow Engineering, Inc., a supplier, against Continental Casualty Company, Malan Construction Corporation, Dean Construction Company, Inc., Malan-Dean Corp., and John R. Monsell, individually and t/a John R. Monsell Company. The defendants (except Monsell, who admittedly is primarily liable) move for dismissal of the action because (1) plaintiff did not give the contractor the written notice within 90 days from the date it furnished the last of the material for which claim is made, as is required by the Miller Act; (2) the amendment of the complaint made by plaintiff at the pretrial conference sets forth a cause of action at common law over which this court has no jurisdiction.
Plaintiff has filed a cross motion for summary judgment, alleging that as a matter of law proper notice was given. The parties have agreed as to the facts and have submitted the matter on briefs.
Defendants Malan Construction Corporation and Dean Construction Company, Inc., as general contractors, entered into a contract on November 22, 1957, with the Navy for work at the Navy Turbine Station in Trenton, New Jersey; on the same day, these defendants sublet the contract to their affiliate corporation, defendant Malan-Dean Corp., and thereafter Malan Construction Corporation and Dean Construction Company, Inc., as principals, and Continental Casualty Company, as surety, executed a bond as required by the Miller Act; on January 14, 1958, defendant Malan-Dean Corp. entered into a written agreement with defendant Monsell, trading as John R. Monsell Company as subcontractors, to supply the electric and instrumentation material; thereafter said subcontract was modified to the extent that defendant Monsell was to submit to defendant Malan-Dean Corp. all invoices that Monsell received for material delivered to the air station, and defendant Malan-Dean Corp. was to pay such material men, or in lieu thereof, Monsell was to submit to Malan-Dean the invoices as received by him, together with Monsell's check payable to the material men and thereupon defendant Malan-Dean Corp. was to make available such sums to Monsell to meet the checks so delivered to Malan-Dean, whereupon Malan-Dean would mail the checks directly to the material men; plaintiff Flow delivered as ordered by Monsell certain materials, equipment, etc., to be used on the job, in the sum of $5,603.62, and Monsell gave to defendant Malan-Dean within 90 days from the date of delivery of these materials Monsell's check No. 8457, dated July 23, 1959, in the said sum of $5,603.62, payable to Flow Engineering, Inc.; Malan-Dean did not, however, give over to Monsell in accordance with its agreement aforesaid, moneys in the sum of $5,603.62 and did not transmit to plaintiff Flow Monsell's check No. 8457 until some time after the institution of this action.
Whether the transaction involving check No. 8457 constitutes notice from the supplier, Flow, to the general contractor is the first question for determination. Section 2(a) of the Miller Act 40 U.S.C.A. § 270b(a) requires that any party having direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing the bond shall have a right of action upon the bond only upon giving written notice to the contractor within 90...
To continue reading
Request your trial
-
National State Bank of Newark v. Terminal Const. Corp.
...of whatever nature, from the subcontractor to the contractor is not sufficient." United States for Use of Flow Engineering, Inc. v. Continental Casualty Co., 195 F. Supp. 177, 179 (D.N.J.1961). We find that, except for the registry requirement of the notice of November 29, 1960, to the sure......
-
Porter-Lite Corp. v. Warren Scott Contracting Co.
...United States for Use and Benefit of Davison v. York Elec. Const. Co., D.C., 184 F.Supp. 520; United States for Use of Flow Engineering, Inc. v. Continental Cas. Co. D.C., 195 F.Supp. 177(1). While it may serve to afford the prime contractor with information as to what materials are furnish......
-
United States v. Gregor J. Schaefer Sons, Inc.
...United States ex rel. B. Katchen Iron Works, Inc. v. Standard Acc. Ins. Co., supra. Cf., United States ex rel. Flow Eng'r, Inc. v. Continental Cas. Co., 195 F.Supp. 177, 179-180 (D. N.J.1961). Therefore, the real issue is whether the court should exercise pendant jurisdiction over Schaefer'......
-
United States v. William R. Austin Const. Co., Inc.
...Vermont Marble Co. v. Roscoe-Ajax Construction Co., Inc., 246 F.Supp. 439 (N.D.Cal.1965); United States ex rel. Flow Engineering, Inc. v. Continental Casualty Company, 195 F.Supp. 177 (N.J.1961); United States ex rel. Fairbanks Morse and Co. v. Bero Construc Corporation, 148 F.Supp. 295 (S.......