United States v. Wolfson

• Decision Date: 19 June 1973
• Docket Number: No. 72 C 642(1).,72 C 642(1).
• Citation: 362 F. Supp. 454
• Parties: UNITED STATES of America, at the relation and for the Use and Benefit of MATERIAL SERVICE COMPANY, a corporation, Plaintiff, v. Jeffrey WOLFSON, d/b/a Finish Concrete Company, et al., Defendants.
• Court: U.S. District Court — Eastern District of Missouri

362 F. Supp. 454

UNITED STATES of America, at the relation and for the Use and Benefit of MATERIAL SERVICE COMPANY, a corporation, Plaintiff, v. Jeffrey WOLFSON, d/b/a Finish Concrete Company, et al., Defendants.

No. 72 C 642(1).

United States District Court, E. D. Missouri, E. D.

June 19, 1973.

Charles M. Schmidt, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, Mo., for plaintiff.

Donald L. James, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, Mo., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MEREDITH, Chief Judge.

This cause was tried to the Court. The Court has been fully advised by the testimony, the exhibits, and the memoranda of the parties.

Findings of Fact

1. Material Service Company and defendant Hoel-Steffen Construction Company are Missouri corporations, each with its principal place of business in Missouri. Defendant United States Fidelity and Guaranty Company is a Maryland corporation, with its principal place of business outside the State of Missouri. Finish Concrete Company is a sole proprietorship, owned by defendant Jeffrey Wolfson.

2. Defendant Hoel-Steffen Construction Company entered into a contract with the United States of America on or about January 25, 1971, to construct a post office building in Clayton, Missouri. Thereafter, defendant Hoel-Steffen Construction Company executed a payment bond under the Miller Act, 40 U.S.C. § 270a, and the defendant United States Fidelity and Guaranty Company signed the bond as a surety in a penal sum in excess of $500,000, to pay all claimants for labor and material.

3. In July 1971, defendant Finish Concrete Company agreed to furnish labor and materials to the general contractor, Hoel-Steffen Construction Company, for certain concrete work. Finish Concrete Company purchased concrete from the plaintiff, Material Service Company, between November of 1971 and June of 1972. The prices charged for the concrete were reasonable.

4. The total amount of concrete material furnished by the plaintiff was $24,481.54, and the only payments received on this account were two checks: one, dated April 4, 1972, in the sum of $2,767.50; and the other, dated April 26, 1972, in the sum of $565.80, leaving a principal balance due of $21,148.24. The two checks in payment were joint checks payable to "Finish Concrete Company and Material Service Company" by the Hoel-Steffen Construction Company. Demand has been made by the plaintiff against all defendants for the balance due.

5. Plaintiff, on January 14, 1972, executed a lien waiver for the sum of $12,511.86, to Finish Concrete Company, which stated in pertinent part as follows:

". . . do hereby waive and release any and all lien, and claim or right to lien on said above described building and premises under the Statutes of the State of Missouri relating to Mechanics' Liens, on account of labor or materials, or both, furnished by the undersigned to aforesaid purchaser for said building and premises up to and including December 31, 1971 only, but not for any furnished subsequent to said date."

The lien waiver was delivered to Jeffrey Wolfson, d/b/a Finish Concrete Company, who promised to pay this amount, $12,511.86, when this amount was received from the general contractor, Hoel-Steffen Construction Company.

6. Wolfson delivered the lien waiver to defendant Hoel-Steffen Construction Company, and thereafter received a check from Hoel-Steffen Construction Company in the sum of $12,600.00. Prior to issuing said check to defendant Finish Concrete Company, defendant Hoel-Steffen Construction Company knew that the plaintiff had received no payment for materials furnished up to and including December 31, 1971. Hoel-Steffen Construction Company also knew that a lien waiver was not effective insofar as waiving material men's rights to payment on the bond in any construction done for the Federal Government involving the Miller Act.

7. In March of 1972, the plaintiff stopped delivering concrete and thereafter in a telephone conversation between Mr. Eugene Haskins, Ted Kienstra, Jr., officers and...