United States v. United States Fidelity & Guaranty Co., 2295.

• Decision Date: 31 October 1933
• Docket Number: No. 2295.,2295.
• Citation: 4 F. Supp. 854
• Parties: UNITED STATES, for Use and Benefit of WALKER et al. v. UNITED STATES FIDELITY & GUARANTY CO. et al.
• Court: U.S. District Court — District of Wyoming

4 F. Supp. 854

UNITED STATES, for Use and Benefit of WALKER et al. v. UNITED STATES FIDELITY & GUARANTY CO. et al.

No. 2295.

District Court, D. Wyoming.

October 31, 1933.

Robert Murray Stewart, of Salt Lake City, Utah, for plaintiff.

Ingebretsen, Ray & Rawlins, of Salt Lake City, Utah, for defendant United States Fidelity & Guaranty Co.

Allen T. Sanford, of Salt Lake City, Utah, for defendant Campbell Building Co.

KENNEDY, District Judge.

The above-entitled cause is one in which the plaintiff seeks to recover from a surety company under a bond given to secure the fulfillment of a federal highway project in the state of Wyoming in accordance with the provisions of 40 USCA § 270. A jury was waived by the parties and the cause tried to the court. Two principal issues are raised by the pleadings: (1) As to whether the materials and services for the major amount alleged to have been furnished by the plaintiffs in the construction of the highway are within the scope of the bond; and (2) as to whether the contract was a joint adventure between the plaintiff copartnership and the principal contractor and for the fulfillment of which contract the bond was given, so as to preclude plaintiff's recovery.

Manifestly, the second issue should be examined first because, if it should be developed that this defense is sound, it makes unnecessary consideration of the first issue.

Voluminous evidence, both oral and documentary, was offered upon the trial and trial briefs have been filed. A considerable portion of the evidence was devoted to the purpose of substantiating the defense that the contract out of which plaintiff's claim arose was in fact a joint adventure with the Campbell Building Company, the contractor in this and other similar projects. The project in controversy was known as the Jackson project, because of the fact that it involved a highway being constructed adjacent to the widely known Jackson Hole, Wyo. One of the other projects was commonly known as the Banks, Idaho, and still another as the Grantsville, Utah, jobs. It seems to be generally admitted by the parties that the Banks project was a joint adventure, but there is a denial on the part of the plaintiff that the same arrangement was involved in the Jackson and Grantsville projects.

It would be impracticable in this memorandum to review all the evidence upon this phase of the controversy. There are, however, certain high spots which illuminate the general trend. The contract and bond were issued on June 13, 1931. On July 8th of the same year the plaintiff copartnership and the defendant contractor established a joint account in one of the banks of Salt Lake City to which they delivered a statement, reading: "This is a joint partnership account for the purpose of transacting business together in connection with road contracts which we have taken jointly." At practically the same time and thereafter, checks and remittances arising from the Grantsville, Banks, and Jackson contracts were deposited in this account and checked out apparently...