United States v. IVEY BROTHERS CONSTRUCTION COMPANY

• Decision Date: 17 January 1961
• Docket Number: Civ. A. No. 2108.
• Parties: UNITED STATES of America for the Use and Benefit of Harris F. NOBLES, Plaintiff, v. IVEY BROTHERS CONSTRUCTION COMPANY, Inc., a Georgia corporation; James Stewart and Co., Inc., a New York corporation; and United States Casualty Company, a New York corporation, Defendants.
• Court: U.S. District Court — District of Delaware

191 F. Supp. 383

UNITED STATES of America for the Use and Benefit of Harris F. NOBLES, Plaintiff, v. IVEY BROTHERS CONSTRUCTION COMPANY, Inc., a Georgia corporation; James Stewart and Co., Inc., a New York corporation; and United States Casualty Company, a New York corporation, Defendants.

Civ. A. No. 2108.

United States District Court D. Delaware.

January 17, 1961.

Courtney H. Cummings, Jr., Killoran & Van Brunt, Wilmington, Del., for plaintiff.

Arthur J. Sullivan, Morris, James, Hitchens & Williams, Wilmington, Del., for defendants.

RODNEY, Senior District Judge.

This is a motion by the plaintiff for summary judgment against the United States Casualty Company, the surety on a building contract. The action is founded on the Miller Act, 40 U.S.C.A. § 270a et seq.

The complaint sets out an employment of the plaintiff as a superintendent on the work at a salary of $200 per week and expenses, and is particularly based upon a writing attached to the complaint. This writing contains the following language:

"It is agreed that we will pay you an agreed salary and expense allowance for your services as job superintendent during construction of the above referenced project.

"It is further understood that Ivey Brothers Construction Co., Inc., will pay to you an amount of $15,000. as an added inducement for your services on this contract. This amount will be paid in full at the completion of this contract."

It is assumed that the services of a superintendent or working foreman on a work contract represents "a person supplying labor" within the meaning of the Miller Act.¹

It is not suggested to me that, insofar as the application of the Miller Act is concerned, there is any distinction between the services represented by the weekly compensation and any services represented by the bonus or final payment of $15,000.

The answer of the defendant by paragraph 8 makes a general denial of all the essential allegations of the complaint, and by the third affirmative defense states:

"If any valid contract for additional compensation existed as alleged in the complaint, such contract was expressly rescinded subsequent thereto by agreement between Nobles the plaintiff and all parties in interest."

In my opinion, the complaint and answer created a direct and unequivocal issue of fact. Thereupon, the plaintiff filed an affidavit denying the averments of the third affirmative defense. In Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580, 581, the Court of Appeals for...