United States v. Hyatt

• Decision Date: 07 February 1899
• Docket Number: 749.
• Citation: 92 F. 442
• Parties: UNITED STATES, to Use of SABINE & E. T. RY. CO., v. HYATT et al.
• Court: U.S. Court of Appeals — Fifth Circuit

92 F. 442

UNITED STATES, to Use of SABINE & E. T. RY. CO., v. HYATT et al.

No. 749.

United States Court of Appeals, Fifth Circuit.

February 7, 1899

This suit was brought by the Sabine & East Texas Railway Company in the name of the United States, on a bond which F. A. Hyatt & Co. executed to the United States. The railway company claims that F. A. Hyatt & Co. are indebted to it for transportation charges, and that the principals and sureties on the bond just mentioned are liable for the indebtedness. A jury was waived in the trial court. The judge made findings of fact and law.

His findings of fact are, in substance, as follows:

F. A Hyatt & Co., having, on January 4, 1895, entered into a contract with the United States to do certain work in the construction of East Jetty, at Sabine Pass, Tex., furnished a bond to the United -states in the sum of $30,000, for the faithful performance of their contract. This contractors' bond was executed on January 5, 1895, with J. T. Munson and J. B. McDougall as sureties. It contained a stipulation under the act of congress approved . august 13, 1894 (28 Stat. 278), that 'F.A. Hyatt & Co. shall be responsible for all liabilities incurred in the prosecution of the work for labor and materials, and shall promptly make payment to all persons supplying him or them labor or materials in the prosecution of the work. ' It was necessary, in the prosecution of the work. for F. A. Hyatt & Co. to furnish a large amount of sand rock, which they did by procuring the same at Rockland, Tex., a point distant about 120 miles from Sabine Pass, and on the line of the Sabine & East Texas Railway Company, which is a common carrier. For the purpose of transporting the sand rock from Rockland to Sabine Pass, F. A. Hyatt & Co., on March 29, 1895, entered into a contract with said railway company. This contract provided that the railway company agreed to 'carry over their lines shipments of sand rock from to be used for the construction of jetties at Sabine Pass, as described and defined in contracts between the United States government, dated January 4, 1895,' and F. A. Hyatt & Co. The contract provided for the rate of freight which F. A. Hyatt & Co. were to pay the railway company. F. A. Hyatt & Co. were to load the cars at Rockland, and unload them at Sabine Pass, and they waived 'all claim for damages, or for the value of the sand rock lost by wreck, or for damage or delay caused by flood or by any other cause beyond the control of' the railway company. It was further agreed that F. A. Hyatt & Co. would pay the railway company, 'between the 1st and 15th of each subsequent month, for all material transported under the provisions of the agreement during the preceding month. ' It was further agreed that 'bond in sufficient amount will be furnished by the parties of the second part (F. A. Hyatt & Co.) to the parties of the first part (the railway company) which shall insure payment of said transportation charges. ' This contract between F. A. Hyatt & Co. and the railway company was, as stated, executed on March 29, 1895, and it was provided that it should terminate on October 1, 1895, unless renewed or extended by mutual consent. The bond provided for by the contract between F. A. Hyatt & Co, and the railway company was furnished by F. A. Hyatt & Co. for the prompt payment, according to the terms of the contract of March 29, 1895, of the transportation charges to the railway company. This bond was for $10,000, and was signed by F. A. Hyatt & Co., as principals, and by Edward Perry, a member of the firm of F. A. Hyatt & Co., and one J. J. Solinsky, as sureties. It was under said contract and bond just referred to, of March 29, 1895, that the sand rock was transported from Rockland to Sabine Pass, and the railway company relied upon that bond as security for the payment to it of all freight charges for the transportation of said sand rock, and did not rely upon the bond executed by F. A. Hyatt & Co. to the United States on January 5, 1895. The railway company transported, at the instance of F. A. Hyatt & Co., a large amount of sand rock under the contract of March 29, 1895, and the freight charges therefor amounted, in the aggregate, to the sum of $28,061.58. F. A. Hyatt & Co. paid the railway company various sums of money from time to time, and on April 28, 1896, there was due the railway company by F. A. Hyatt & Co., for the transportation of rock under said contract of March 29, 1895, $12,019.15; and on that date the railway company brought...