United States v. Metropolitan Body Co.
| Decision Date | 16 September 1935 |
| Docket Number | No. 375.,375. |
| Parties | UNITED STATES, for Use of MENGEL BODY CO., Inc., et al. v. METROPOLITAN BODY CO. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Marsh, Stoddard & Day, of Bridgeport, Conn., and Watrous, Hewitt, Gumbart & Corbin, of New Haven, Conn. (Philo C. Calhoun, of Bridgeport, Conn., and Chas. A. Watrous, of New Haven, Conn., of counsel), for appellants.
Pullman & Comley, of Bridgeport, Conn. (Arthur M. Comley, of Bridgeport, Conn., of counsel), for appellant Massachusetts Bonding & Insurance Co.
Before MANTON, SWAN, and CHASE, Circuit Judges.
This suit was brought by the plaintiff for the use of Mengel Body Company, Inc., a New Jersey corporation, and the Haskelite Manufacturing Corporation, a New York corporation, and such other creditors of the Metropolitan Body Company as might intervene, against the last-mentioned company, a Connecticut corporation, and the Massachusetts Bonding & Insurance Company, a corporation organized under the laws of Massachusetts, upon a performance bond executed by the Massachusetts Company. A demurrer to the complaint having been sustained, the judgment for the defendants from which this appeal has been taken was entered.
On July 30, 1931, the Metropolitan Body Company entered into a written contract with the United States to build for and deliver to the latter one thousand mail truck bodies as described therein f. o. b. Bridgeport, Conn. The bodies were built and delivered as per contract. They were paid for as agreed and became the property of the government upon delivery.
Also on July 30, 1931, the Metropolitan Body Company delivered to the United States a bond duly executed by Massachusetts Bonding & Insurance Company which was entitled a "Standard Government Form of Performance Bond," conditioned as follows: "Now therefore, if the principal shall well and truly perform and fulfill all the undertakings, covenants, terms, conditions, and agreements of said contract during the original term of said contract and any extensions thereof that may be granted by the Government, with or without notice to the surety, and during the life of any guaranty required under the contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of said contract that may hereafter be made, notice of which modifications to the surety being hereby waived, and if said contract is for the construction or repair of a public building or a public work within the meaning of the Act of August 13, 1894, as amended by the Act of February 24, 1905, shall promptly make payment to all persons supplying the principal with labor and materials in the prosecution of the work provided for in said contract, and any such authorized extension or modification thereof, then, this obligation to be void; otherwise to remain in full force and virtue."
The use plaintiffs and interveners all furnished materials to the Metropolitan Body Company which went into the construction of the mail truck bodies and for which they have not been paid. Their case is based upon the claim that the contract between the government and the Metropolitan Body Company was for the construction of "a public work within the meaning of the act of August 13, 1894 28 Stat. 278, as amended by the Act of February 24, 1905 33 Stat. 811," which is commonly known as the Heard Act (40 USCA § 270), so that the condition of the above-mentioned bond gave to them the security of the bond for the collection of payment for the materials they furnished.
It is apparent that the condition of the bond gives them such security only if the construction of the mail truck bodies should be held to have been the construction of a public work. The Heard Act provides for the giving of a bond by a contractor, who undertakes to construct a public work, which will protect the United States and those who furnish to the contractor materials for use in the construction. If the United States does not sue on the bond within six months from the...
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United States v. Harrison and Grimshaw Construction Co., 6916.
...States could recover under the Heard Act,9 predecessor of the Miller Act, was rejected in United States for Use of Mengel Body Co., Inc., v. Metropolitan Body Co., 2 Cir., 79 F.2d 177, 178, the court saying that the "mail truck bodies were at the risk of the builder and were its property du......
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Regal Indus. Corp. v. Crum and Forster
..."public work" until after the project was completed. In support of this contention, Appellant cites United States use of Mengel Body Co. v. Metropolitan Body Co., 79 F.2d 177 (2d Cir.1935), wherein the court held that the construction of frames for mail trucks was not a public work because ......