United States v. Al-Con Development Corporation, 7920.
Decision Date | 13 November 1959 |
Docket Number | No. 7920.,7920. |
Citation | 271 F.2d 901 |
Parties | UNITED STATES, to the Use of David J. MUSTIN, John A. Mustin, and L. D. Mustin, Sr., Co-partners Doing Business as Mustin Brothers Plastering Company, Appellants, v. AL-CON DEVELOPMENT CORPORATION, a California corporation, Hartford Accident and Indemnity Company, a Connecticut corporation, and Great American Indemnity Company, a New York corporation, Appellees. |
Court | U.S. Court of Appeals — Fourth Circuit |
Howard I. Legum, Norfolk, Va. (Louis B. Fine, and Fine, Fine, Legum, Weinberg & Schwan, Norfolk, Va., on brief), for appellants.
William Earle White, Jr., Richmond, Va. (Wm. Earle White, Petersburg, Va., Minor, Thompson & White, Richmond, Va., and White, Hamilton, Wyche & Shell, Petersburg, Va., on brief), for appellees.
Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.
Appellants, plaintiffs, instituted a civil action under the Miller Act, 40 U.S.C.A. § 270a et seq., against Al-Con Development Corporation, a general contractor, and the bonding companies for Al-Con. Plaintiffs, in their amended complaint, in addition to claims for labor performed and materials furnished under their subcontracts, alleged damages of $60,043.39 due to delay by Al-Con in its performance under the main contract.
The subcontracts between Al-Con and plaintiffs provided, in effect, that plaintiffs should not make any claim against Al-Con (or the owner) for any delay caused by any act or order of Al-Con and that plaintiffs expressly waive any and all claims for damages for any such delays. Relying upon the contractual provisions, defendants filed their motion for summary judgment as to the portion of the plaintiffs' claim based on alleged delay. Plaintiffs filed answer to the motion, attaching thereto an affidavit indicating an oral waiver by Al-Con of these contractual provisions and an agreement to pay to the plaintiffs damages for delay caused by Al-Con. The court entered an order granting summary judgment for the defendants as to the plaintiffs' claim of damages for delay, adjudging that the defendants "receive their costs and charges in this behalf expended and have execution therefor". From this order plaintiffs prosecute this appeal.
We are of the opinion that this appeal is premature and must be dismissed. Rule 54(b) of the Rules of Civil Procedure, 28 U.S.C.A., provides:
In Gunther v. E. I. Du Pont De Nemours & Co., 4 Cir., 1958, 255 F.2d 710, 717, this court, speaking through Judge Soper, construed Rule 54 and stated: "* * * The court may direct a final judgment upon less than all of the claims only when it determines that there is no reason for delay and expressly directs the entry of the judgment, and if such action is not taken the adjudication is not final." Here, the...
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...therefore renders the 'judgment' nonappealable. Gilbertson v. City of Fairbanks, 17 Alaska 458, 253 F.2d 231; United States v. Al-Con Development Corporation, 4 Cir., 271 F.2d 901. In this appeal there is no question that the action involved multiple claims. When the trial court adjudicated......
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