United States v. Peerless Casualty Company
| Decision Date | 21 May 1958 |
| Docket Number | No. 15852.,15852. |
| Citation | 255 F.2d 137 |
| Parties | UNITED STATES of America, for the Use and Benefit of HOPPER BROS. QUARRIES, a partnership, Appellant, v. PEERLESS CASUALTY COMPANY, a Corporation, and Bill Curphy Company, a Corporation, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Herman Ginsburg, Lincoln, Neb. (Hymen Rosenberg, Joseph Ginsburg, Lincoln, Neb., and Elmer F. Witte, Pawnee City, Neb., on the brief), for appellant.
John H. Neiman of Neiman, Neiman & Stone, Des Moines, Iowa (Robert A. Barlow of Healey, Davis, Wilson & Barlow, Lincoln, Neb., on the brief), for appellees.
Before SANBORN, WOODROUGH, and VOGEL, Circuit Judges.
This action was brought under the Miller Act, 40 U.S.C.A. § 270a(a) (1, 2) and 270b(a), against the prime contractor for surfacing levees in the Omaha Levee System, and its payment bondsman to recover $10,000.02 due and owing the use plaintiff (referred to as plaintiff) on account of 6,014.2 tons of crushed rock supplied by it to the subcontractor, Leonard M. McDonald, d/b/a Omaha Rock and Excavating Company, and used on the work. The plaintiff was entitled to recover in the action if it had met the requirements of section 270b in respect to giving notice to the prime contractor within ninety days from June 16, 1953, when the last of the material was supplied. The District Court decided on the trial without a jury that the notice relied on by plaintiff was insufficient and dismissed the action on that ground. The plaintiff appeals.
It appears that the contract between the prime contractor and the sub-contractor called for the latter to furnish some 10,300 tons of the rock and that he purchased 6,014.2 tons of it from plaintiff. It was used on the work between May 19, 1953 and June 16, 1953, the agreed price and value being $10000.02. On June 16, 1953, thirty days after the last material was received on the work, the contractor settled with the subcontractor and paid him in full for all sums due him under his contract without inquiring of him whether he had paid for the material he used on the work. The plaintiff attempted without success to obtain payment from the subcontractor who was subsequently adjudged bankrupt with nothing for general creditors. On August 6, 1953, 51 days after plaintiff's last delivery of the material, plaintiff wrote, signed and mailed the following letter to the prime contractor:
The actual amount of the rock furnished was 6,014.2 tons and the omission of the decimal point in the letter was as a result of a misprint or error.
In reply to the above letter, the contractor wrote plaintiff:
Anton, Hammond, Dunn, Inc., of Des Moines, Iowa, referred to in the lower left hand corner of the above letter, as having a copy of the letter sent to it, is the agent which wrote the payment bond sued on for the defendant Peerless Casualty Company and countersigned the same. It also wrote the contractor's performance bond furnished by the same casualty company and both a payment and a performance bond of the Merchants Mutual Bonding Company given by the subcontractor, McDonald, to the prime contractor.
Raymond Hopper, one of the partners of plaintiff, testified that on August 8, 1953, while the witness was at the rock quarries he received a telephone call from a party who stated that he was a representative of the bonding company. The following Tuesday the witness received another long distance telephone call from the same party. On Monday, August 10th, following the first telephone call, the witness went to Omaha and contacted Mr. McDonald, the sub-contractor; and in the second call which the witness received on Tuesday, the party calling made reference to the conversation which the witness had had with Mr. McDonald on the Monday preceding. The party calling on Tuesday wanted to know how the witness had come out when he talked to McDonald, and the witness told this party that he had agreed to deduct $600.00 from the amount due, and to settle for $10,000.00 which was to have been paid that day. McDonald did not pay then, but agreed to pay within a week or ten days; and the witness so reported to the person calling him over the telephone. This party then told the witness that if the witness did not receive the money shortly, the witness should let him know. This conversation occurred on August 11, after the witness had talked to Mr. McDonald on August 10th. The party with whom the witness talked on August 11 had the same voice as the party who had called the witness the preceding Saturday, August 8th. The call came from Des Moines.
When the call was made to the witness on August 8th, the party calling wanted to know if the witness had received any payment on the rock which he had delivered, and the witness told him that he had not, and the party then wanted to know why. The witness told the party inquiring that he did not know why, but that he would go to Omaha on Monday and look up McDonald and find out what had happened. In that conversation the party calling stated that he was a representative of the bonding company, and inquired as to the amount due the plaintiff, and the witness told the party calling that the amount was $10,600.02 and that party then told the witness that he understood that there was a controversy over some of the material, and that was the reason McDonald was withholding payment. In that conversation the party calling told the witness that he had been notified by the contractor that it had received a letter from plaintiff to the effect that plaintiff had not been paid and was making demand for payment.
During the latter part of August, Mr. Glen Lange, Assistant Secretary of the contractor, called plaintiff and talked to Mr. Raymond Hopper by long distance. He told Raymond Hopper that he had just spoken to McDonald in Omaha, and McDonald had advised Mr. Lange that he, McDonald, had settled with Hopper Brothers and he wanted to verify the statement. Raymond Hopper said he had come to an agreement with McDonald as to the amount owing and McDonald had promised to pay by a certain time. Glen Lange told Raymond Hopper to let the contractor know if McDonald did not pay and they would try to help him.
Plaintiff's further attempts to collect from McDonald proved unsuccessful, and on October 28, 1953, after the ninety day period had passed, plaintiff sent the following letter, which was received by contractor on October 29, 1953:
On October 29, 1953, Anton, Hammond, Dunn, Inc. transmitted the following letter to the sub-contractor:
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