United States v. Williams

• Decision Date: 15 February 1957
• Docket Number: No. 5402.,5402.
• Citation: 240 F.2d 561
• Parties: The UNITED STATES of America for the use of THE ARDMORE CONCRETE MATERIAL COMPANY, Inc., a corporation, Appellant, v. H. D. WILLIAMS and W. W. Collins, d/b/a Saxet Foundation Company; T. C. Bateson Construction Company, a corporation; The National Surety Corporation; and Fidelity and Casualty Company of New York, a corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

240 F.2d 561 (1957)

The UNITED STATES of America for the use of THE ARDMORE CONCRETE MATERIAL COMPANY, Inc., a corporation, Appellant, v. H. D. WILLIAMS and W. W. Collins, d/b/a Saxet Foundation Company; T. C. Bateson Construction Company, a corporation; The National Surety Corporation; and Fidelity and Casualty Company of New York, a corporation, Appellees.

No. 5402.

United States Court of Appeals Tenth Circuit.

January 2, 1957.

Rehearing Denied February 15, 1957.

Looney, Watts, Looney, Hamill & Nichols and W. R. Wallace, Jr., Oklahoma City, Okl., for appellant.

Byron Poulis, New York City, Julian B. Fite, Muskogee, Okl., and Brundidge, Fountain, Elliott & Bateman, Dallas, Tex., for appellees.

Before PHILLIPS, MURRAH and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

The plaintiff-appellant, Ardmore Concrete Company, Inc. brought suit under the Miller Act, §§ 1-4, 40 U.S.C.A. §§ 270a-270d against the defendants-appellees, claiming $5,867.11 for readymixed concrete delivered but not paid for on a government construction project. T. C. Bateson Construction Company is the prime contractor and The National Surety Corporation is surety on its payment bond; Saxet Foundation Company is the subcontractor and its surety is Fidelity & Casualty Company of New York. Since the subcontractor has not cross-appealed upon its counterclaim filed in the District Court, the issues are reduced to the question of whether the defendants are liable under their contracts and bonds for material furnished and used in the public work.

The prime contractor, Bateson, entered into a contract with the United States for the construction of "A/C Maintenance Hangar and Supporting Facilities, Ardmore Air Force Base, Ardmore, Oklahoma, Contract DA-41-443-ENG-4076." Specifications for the work required a number of caissons to be placed under the foundation of the hangar; holes of 24 to 48 inches in diameter and 50 to 60 feet deep were to be bored and filled with reinforced concrete. The quality of concrete to be used as set forth in the trial court's findings is as follows:

(a) "1A-6. Concrete." That strength requirements, materials, reinforcement, mixing and placing concrete, shall conform to Section 2 Concrete of the Specifications for 3,000 pounds per square inch concrete; and providing for a method of depositing the concrete in the caisons.

(b) "2-11. Classes of Concrete and Usage." A minimum allowable compressive strength at 28 days, on test, of 3,000 pounds per square inch for Class A concrete and a classification of the concrete involved herein as Class A concrete.

(c) "2-12. Proportioning of Concrete Mixes" and average cement content for Class A concrete of 5½ bags of cement per cubic yard of concrete.

(d) "2-28. Payment." A provision for adjustment in payment at contract unit price-bid for cement more or less than the average bags per cubic yard specified for a given mix.

A further provision allowed for adjustment for variation from the specified average cement content of 5½ bags per cubic yard of concrete, permitting payment to the contractor if a greater amount was needed and a credit to the government for lower cement content of concrete.

The work was to be subject to inspection, examination, test and approval or rejection by the contracting U. S. officer and it was the duty of the contractor to immediately replace or correct rejected material and defective workmanship. In case of a dispute, the contractor might make a claim to the contracting officer and his decision in the matter is final unless set aside by higher authority on appeal.

Pursuant to this contract Bateson entered into a subcontract with Saxet, also made a defendant in this action. The subcontractor agreed to furnish all material and labor for the caisson foundation in strict accordance with the conditions, plans and specifications prepared by the Corps of Engineers, U. S. Army, which were made a part of the subcontract; and further to perform to the entire satisfaction of the Corps of Engineers.

In accordance with this subcontract, Saxet entered into a purchase order agreement with the plaintiff for approximately 2,000 cubic yards of ready-mixed concrete, having a cement content of 5½ sacks per cubic yard. Provisions that the concrete be in strict accordance with the specifications of the Corps of Engineers and that all materials be subject to approval of the Corps of Engineers were incorporated in this agreement.

The plaintiff furnished ready-mixed concrete for the project in accordance with a mix design furnished by the Corps of Engineers which called for only five bags of cement per cubic yard of concrete. Samples were taken and tested by the Corps of Engineers and many of them failed to meet the strength requirements of the specifications. The concrete in the caissons was tested and the Corps of Engineers rejected the concrete in fourteen of the forty-five caissons and questioned the quality of that in sixteen others. The Corps of Engineers likewise refused payment on the rejected concrete and an appeal was taken from this decision and is now pending before the Chief of Engineers.

After the concrete was...