United States v. Maryland Casualty Co.
| Decision Date | 12 February 1945 |
| Docket Number | No. 10999.,10999. |
| Citation | 147 F.2d 423 |
| Parties | UNITED STATES for Use of EDWARD E. MORGAN CO., Inc., v. MARYLAND CASUALTY CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wm. Harold Cox, of Jackson, Miss., for appellant.
Wm. H. Watkins, of Jackson, Miss., for appellee.
Before McCORD, WALLER, and LEE, Circuit Judges.
Edward E. Morgan Company, Inc., has appealed from a summary judgment rendered dismissing its complaint. This company was a subcontractor on work done by the United States in constructing a levee known as Wallace Lake Dam across Cypress Bayou in Caddo and DeSoto Parishes, Louisiana. Maryland Casualty Company was the commercial surety on the bond of the principal contractor, Newsom Bros. & J. W. Snowden. United States, for Use of Edward E. Morgan Co., Inc. v. Maryland Casualty Co., D. C., 54 F.Supp. 290.
Recovery is sought on the surety bond for the sum of $17,378.25, which is the ceiling use value of rental on equipment of the subcontractor and which was fixed by the Office of Price Administration, for the period of 31 days this equipment remained idle at the work site.
The prime contract for this levee work was let by the United States to Newsom Bros. & J. W. Snowden. Thereupon, this contractor filed its statutory bond with the Maryland Casualty Company as its surety, embodying the conditions required by 40 U.S.C.A. § 270a, commonly known as the Miller Act. The bond is conditioned that: "If the principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract, and any and all duly authorized modifications of said contract that may hereafter be made, * * * that such bond shall be void."
The prime contractor sublet a part of this work to the Morgan Company and entered into an agreement July 12, 1941, which among other things, provided: "The terms and conditions of the principal contract will govern the requirements and the responsibilities of the parties to this subcontract, in all things except insofar as hereby modified or changed."
The subcontract further provided: "The subcontractor agrees to commence work as directed by the contractor and to proceed in such a manner as not to delay or interfere with the contractor's work or with the work of any other subcontractor."
The standard specifications employed by the United States War Department on all public works were made a part of the contract here under consideration: "It is understood that any instructions or decisions given by a superior officer, through the contracting officer, are to be considered instructions or decisions of the contracting officer in all cases where, under the terms of the contract, decision rests with the contracting officer."
The subcontract consisted of two sections of levee work. The smaller section being north of Cypress Bayou, where the work commenced and where the equipment was located. The larger section of work lay south of this bayou. Numerous pieces of expensive and heavy equipment were required for the performance of the work outlined. When the subcontractor had finished approximately 90 per cent of the work on the north side of Cypress Bayou, it was ordered by the contracting officer in charge of the work to cease operations and not to move its equipment onto or to commence that part of the work south of the bayou. This order left a larger part of the subcontractor's equipment, and all of the larger and heavier pieces, idle. The subcontractor advised the United States, the prime contractors, and the Maryland Casualty Company, who executed the bond in question, of such circumstances, and requested that the order be recalled or that it be allowed to move its equipment from this job or that rent would accrue by reason of such increased cost occasioned by said unanticipated order. The stoppage of the work was in no wise the fault of the subcontractor, but was occasioned by the Kansas City Railroad Company, who complained that further work on the south side of the bayou would endanger abutments to its trestles which...
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