Wynne v. United States

• Decision Date: 28 August 1967
• Docket Number: No. 9242.,9242.
• Citation: 382 F.2d 699
• Parties: J. C. WYNNE and General Insurance Company of America, Appellants, v. UNITED STATES of America, for the Use of MID-STATES WATERPROOFING CO., Inc., Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 699 (1967)

J. C. WYNNE and General Insurance Company of America, Appellants, v. UNITED STATES of America, for the Use of MID-STATES WATERPROOFING CO., Inc., Appellee.

No. 9242.

United States Court of Appeals Tenth Circuit.

August 28, 1967.

Melvin F. Pierce, Oklahoma City, Okl. (John R. Couch, and Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, Okl., of counsel, with him on the brief), for appellants.

William L. Fry, Wichita, Kan., for appellee.

Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

This is an action commenced by a subcontractor against the prime contractor and brought pursuant to the Miller Act (40 U.S.C.A. § 270a et seq.). The complaint of the use plaintiff, who is the appellee herein, asserted a breach of the contract between the parties and claimed damages. The plaintiff recovered in the trial court, and the prime contractor has taken this appeal.

The work out of which the controversy arose was on water storage tanks on a Government project, and the use plaintiff as subcontractor undertook to do or have performed the sand blasting and painting of the tanks. Under the contract the appellant prime contractor was to furnish the paint for appellee's use, and the record shows that the paint so provided when applied was not acceptable to the Government. Additional sand blasting and additional coats of paint were required before the work was accepted. The record also shows that samples of the paint had been tested by the Government and were accepted, but that the problem arose in the application of the paint. The Government contracting officer found that the problem was caused by "* * * some latent quality in the particular batch of paint used," and that this "* * was beyond the control and without the fault or negligence of the contractor." The trial court, as indicated above, found that by reason of the reaction of the paint when applied, additional work and materials were required of plaintiff to complete the painting of the tanks.

The trial court concluded that the measure of recovery by the plaintiff against the prime contractor for labor and materials furnished "* * * after breach by the general contractor is the reasonable value of the work and materials furnished, plus overhead and profit, whether the theory of recovery be called a contract in fact, a quasi contract, or promissory estoppel."

On this appeal, two principal issues are raised by the appellant. The first concerns the period of limitation set forth in the Miller Act. The second point is whether the evidence sustains the finding of a breach of contract and, if so, whether the damages were "improperly assessed."

As to the limitations issue, the record shows that the initial complaint of the use plaintiff was filed within one year of the completion of the work, and so within the limitation provided by the Act. This initial complaint of the plaintiff-appellee however described the defendant-appellant only as "The Bering Company," and stated that it was a corporation with its "home office in Dallas, Texas, 3530 Singleton Boulevard." The directions for service were that it be served on a corporate official. The return of the marshal showed that copies of the summons and this complaint were served "* * * on the within named The Bering Co. by leaving the same in the hands of J. C. Wynne, Owner, at his office 3530 Singleton Blvd., Dallas, Texas." The copy of the contract attached to the complaint so served, and from which this dispute arose, describes the defendant as "The Bering Company Tank Division, 3530 Singleton Blvd., Dallas, Texas," and was signed "The Bering Company Tank Division By: C. L. Hammond." During the course of depositions, it developed that the contract was actually between J. C. Wynne, a sole proprietorship, d/b/a The Bering Company Tank Division, and the plaintiff. The plaintiff accordingly amended its complaint to change the description of the defendant, and the amended complaint was filed following the expiration of one year from the completion of the contract. The appellant contends that the period of limitation had expired when the amended complaint was filed, and the plaintiff by such an amendment could not effectively so change the...