United States v. Robbins

• Decision Date: 20 October 1954
• Docket Number: Civ. A. No. 53-829.
• Citation: 125 F. Supp. 25
• Parties: UNITED STATES of America for the Benefit and Use of WESTINGHOUSE ELECTRIC SUPPLY COMPANY, a corporation duly organized by law and having an usual place of business in Boston, Suffolk County, v. David A. ROBBINS, of Brookline, Norfolk County, d/b/a D. A. Robbins Electric Co., and Dale Construction Co., a corporation duly organized by law and having an usual place of business in Newton, Middlesex County, and Phoenix Indemnity Company, a corporation duly organized by law and having an usual place of business in Boston, Suffolk County.
• Court: U.S. District Court — District of Massachusetts

125 F. Supp. 25

UNITED STATES of America for the Benefit and Use of WESTINGHOUSE ELECTRIC SUPPLY COMPANY, a corporation duly organized by law and having an usual place of business in Boston, Suffolk County, v. David A. ROBBINS, of Brookline, Norfolk County, d/b/a D. A. Robbins Electric Co., and Dale Construction Co., a corporation duly organized by law and having an usual place of business in Newton, Middlesex County, and Phoenix Indemnity Company, a corporation duly organized by law and having an usual place of business in Boston, Suffolk County.

Civ. A. No. 53-829.

United States District Court D. Massachusetts.

October 20, 1954.

Wasserman & Salter, Boston, Mass., Bernard P. Rome, Boston, Mass., for plaintiff.

Edward H. Applestein, Cambridge, Mass., for defendant Robbins and Dale.

W. Lloyd Allen and Arthur J. Martin, Boston, Mass., for defendant Phoenix Indem. Co. FORD, District Judge.

This is an action under the Miller Act, 40 U.S.C.A. § 270a et seq., to recover the price of certain materials allegedly furnished by the use plaintiff, Westinghouse Electric Supply Company (hereinafter called Westinghouse), for use in connection with work done at the Watertown Arsenal under a contract No. DA-19-066-Ord-1431 between the United States and defendant Dale Construction Co. (hereinafter called Dale). It is alleged that these materials were used, consumed and incorporated into the work done in connection with the execution of this contract. Defendant Phoenix Indemnity Company is surety for Dale Construction Co. on its labor and materials bond.

Defendant David A. Robbins, doing business as D. A. Robbins Electric Co., was the subcontractor for the electrical work to be done under Dale's Watertown Arsenal contract. The materials supplied by Westinghouse were ordered by Robbins, and delivered to Robbins at the Arsenal. Payment was made, except for the balance involved in this action. The correctness of the amount still owing to Westinghouse, $923.54, is admitted, as well as the liability of Robbins. The issue here is whether Westinghouse can recover as against the prime contractor, Dale, and its surety.

It is admitted that no written notice in accordance with 40 U.S.C.A. § 270b (a) was given by Westinghouse to Dale. Westinghouse contends that Robbins and Dale were so related that they should be treated as being substantially the same business entity, or, alternatively, that Robbins in his dealings with Westinghouse was not acting as principal but as agent of Dale, an undisclosed principal.

In 1951 and 1952, the period involved here, Robbins was a master electrician carrying on an electrical contracting business as an individual. Dale Construction Co. was a Massachusetts corporation engaged in general construction work. Robbins was treasurer of Dale and he and his wife directors of Dale. Between them they owned about half the stock of Dale. There were three other stockholders and directors who owned the remaining shares. Dale and Robbins had separate places of business. Separate books were kept, Robbin's by his wife, and Dale's by an accountant hired for that purpose. It appears that Robbins did the electrical work under many Dale contracts, but not under all of them, and that he also did other electrical work besides that on Dale's projects.

In the present case there was no formal written contract between Dale and Robbins. Inquiry was made of other electrical contractors as to their price for doing the electrical work under the Watertown Arsenal contract. Their prices were higher than the figure for which Robbins was willing to do the job. Robbins discussed the matter with the other directors and shareholders of Dale and it was agreed that Robbins was to do the work on a cost plus basis for an amount not to exceed the upset price of $31,000. Robbins then hired electricians...