United States v. Trione
| Decision Date | 27 April 1951 |
| Docket Number | Civ. No. 2958. |
| Parties | UNITED STATES, for Use of HARRINGTON et al. v. TRIONE et al. |
| Court | U.S. District Court — District of Colorado |
Long & Hyman, Denver, Colo., for plaintiffs.
Thomas K. Hudson, Denver, Colo., for defendants King F. Trione and Dera Trione.
January & Yegge, Denver, Colo., for defendant Western Casualty & Surety Co.
Findings of Fact
This is an action brought by the United States for the use of plaintiffs, Perry E. Harrington and George L. Miller, against defendants, King F. Trione and Dera Trione and The Western Casualty and Surety Co., for labor and materials furnished to complete a reclamation project for the United States under the provisions of Title 40 U.S.C.A. § 270a et seq.
On July 13, 1948, the defendants, King F. Trione and Dera Trione, hereinafter termed the contractors, entered into a contract with the United States to furnish the labor and materials for the clearing of a part of Granby Reservoir Site in Colorado. The contract was designated #2259. As required by the contract and section 270a of Title 40 U.S.C.A., the contractors, as principals, and the defendant, The Western Casualty and Surety Co., hereinafter termed the surety, as surety, executed and delivered to the United States their payment bond in the amount of $96,670.00.
On July 29, 1948, Perry C. Harrington and George L. Miller, hereinafter termed the subcontractors, entered into a contract with the contractors whereby the subcontractors agreed to clear a portion of the Granby Reservoir Site, designated as the North Fork Area, for the sum of $24,500.00. The terms of the contract are as follows:
Pursuant to the terms of the contract, the subcontractors completed the clearing of the North Fork Area to the satisfaction of the United States Bureau of Reclamation on or about July 12, 1949. During the course of the work, contractors advanced $15,860.59 to the subcontractors for payroll and other operational expenses.
Subsequent to the completion of the work, subcontractors made proper demand to the contractors and the surety for payment of the balance of the sum alleged to be due and owing, to-wit: $8,639.41. Neither the contractors nor the surety has paid the sum demanded, or any portion thereof.
Because of the ambiguity in the contract between contractors and subcontractors, the court admitted oral and documentary evidence in regard to the mutual intention of the parties. From the language of the contract and material parol evidence the court finds that the mutual intention of the parties, insofar as concerns a disposition of this action, was as follows:
Subcontractors agreed to clear the North Fork Area to the satisfaction of the United States engineers as per the specifications of contract # 2259 for the sum of $24,500.00 Subcontractors agreed to furnish all equipment necessary to complete the job. Contractors agreed to pay the wages of the working personnel and day by day operational expenses.
Subcontractors, P. E. Harrington and G. L. Miller, were to receive the difference between the contract price of $24,500.00 and the money advanced for payroll and other expense from the profits derived from contract #2259. There was some evidence introduced which tends to show the subcontractors were to receive the balance due from profits on the North Fork Area, irrespective of the financial gain or loss of the overall clearing contract; however since the court finds that neither contract #2259 nor the portion designated as the North Fork Area was completed at a profit or ever showed a profit, it is not necessary to more specifically ascertain the mutual intention of the parties on that issue.
It was the mutual intention of the parties that the subcontractors would be compensated by the contract price less advance use of their equipment, including equipment purchased during the progress of the work and for their personal services.
It was further the mutual intention of the parties that the balance would not be due subcontractors until contract #2259 or at least the North Fork Area showed or was completed at a profit. However, it was the mutual intention of the parties that contractors would pay the wages of all working personnel of subcontractors, except P. E. Harrington and G. L. Miller, and operational expenses during the progress of the work, regardless of when, if ever, the job showed a profit.
It was contemplated by the parties that the profits gained from clearing the North Fork Area would be derived from the sale of timber removed from the area plus the money received from the Government, less operational expenses.
Contractors completed the clearing of the Granby Reservoir Site at a substantial loss. In fact, they probably would have defaulted if the surety had not advanced the money necessary to complete the work. Nor, as stated heretofore, was the North Fork Area completed at a profit and the evidence does not warrant a finding that that portion of the job ever showed a profit. This failure to show a profit resulted, in part, from the inability of contractors to sell any of the timber removed from the area.
The court finds the following enumerated sums were expended by subcontractors during the progress of the work and represent reasonable day by day operational expenditures, including gas and oil, labor costs and minor repairs to equipment:
(1) gas and oil $2.46 (Plaintiffs' Exhibit H 2)
(2) battery for fire pump $9.43 " " " 4
(3) pipe fittings for fire fighting
equipment $1.91 " " " 5
(4) gas and oil $3.50 " " " 10
(5) labor for building a brush rake $305.41 " " " 11
(6) brush rake repairs $97.65 " " " 13
(7) wages $164.49 " " " 14
(8) wages $27.07 " " " 15
(9) wages $61.77 " " " 16
(10) wages $46.12 " " " 17
(11) sharpening saws $8.12 " " " 18
(12) repairs of saw handles $2.58 " " " 19
(13) truck repairs $14.18 " " " 49
(14) truck repairs $2.79 " " " 50
(15) truck repairs $18.59 (Plaintiffs' Exhibit H 47)
(16) tractor repair $20.77 " " " 46
(17) tractor repair $28.05 " " " 45
(18) tractor repair $4.00 " " " 44
(19) petty cash for minor repairs $20.00 " " " 42
(20) repairs to water pump $13.47 " " " 41
(21) miscellaneous repairs $15.00 " " " 40
(22) gas, oil and diesel fuel $20.00 "
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