United States v. Maryland Casualty Co.
Decision Date | 21 February 1946 |
Docket Number | No. 4589.,4589. |
Citation | 64 F. Supp. 522 |
Court | U.S. District Court — Southern District of California |
Parties | UNITED STATES ex rel. HARGIS v. MARYLAND CASUALTY CO. et al. |
Alfred E. Rogers, of Los Angeles, Cal., for plaintiff.
Vernon F. Gant, of Modesto, Cal., for defendants.
On September 21, 1943, M. J. Ruddy, Sr., and M. J. Ruddy, Jr., comprising the partnership of Ruddy and Son, entered into a contract with the United States of America for performing certain public works, namely, air field facilities at the Materials Test Base, Muroc, California. The contract which was duly executed by the contracting parties, bears the designation and number of W-509 eng 5584.
The contractor executed a bond under the provisions of 40 U.S.C.A. § 270a — known as the Miller Act — with themselves as principals and the defendant Maryland Casualty Company, a Maryland corporation, as surety. In the performance of this contract, the contractor employed M. E. Whitney as a subcontractor to do a certain portion of the work. Whitney earned $67,769.87. The contractor, before the completion of the work and according to the provisions of the contract to be referred to, paid to or expended for Whitney the sum of $60,878.73. This left a balance of $6791.14 in the hands of the contractor. As against this sum, the unpaid claims of Whitney's creditor's amounted to $14,681.44.
Elmer S. Hargis, the use plaintiff, rented to Whitney a tractor and equipment which was used in the performance of his subcontract. The Agreed Statement of Facts states that the rental value is the sum of $1710.00, against which there is a set-off of $71.85, leaving a balance of $1638.15. This is the maximum amount of liability of the defendants, if any liability exists.
The contract between the contractor and the subcontractor contained the following provisions:
The following facts are also stipulated in conjunction with the clause just quoted, which are contained in Paragraph IV of the Stipulation.
The Agreed Statement of Facts contains the following reservations:
In view of this reservation, it is necessary to set forth the paragraphs so numbered other than Paragraph IV, which has already been reproduced. They read:
The three invoices attached to the complaint and the letter of May 9, 1944, addressed to Whitney, another letter dated May 18, 1944, and the telegram of March 30, 1944, are also reproduced in full.
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