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  • Borrett-Moore & Associates and Maryland Casualty Company v. United States of America, For The Use of James P. Harwell, Doing Business As J.S. & H. Construction Company, 367 F.2d 122, 10th Cir. (1966)

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit regarding a dispute over unpaid labor for a government construction contract. James Harwell, doing business as J.S. & H. Construction Company, brought a Miller Act claim against Borrett-Moore & Associates and Maryland Casualty Company to recover unpaid progress payments for steel labor on a government facility construction project. The trial court found that Borrett-Moore agreed to pay J.S. & H. by September 15, 1963 but failed to do so, justifying J.S. & H.'s departure from the job. The Tenth Circuit affirmed, finding no clear error in the trial court's ruling based on

    Original Description:

    Filed: 1966-09-20 Precedential Status: Precedential Citations: 367 F.2d 122 Docket: 8392

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    Borrett-Moore & Associates and Maryland Casualty Company v. United States of America, for the Use of James P. Harwell, Doing Business as J.S. & H. Construction Company, 367 F.2d 122, 10th Cir. (1966)

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit regarding a dispute over unpaid labor for a government construction contract. James Harwell, doing business as J.S. & H. Construction Company, brought a Miller Act claim against Borrett-Moore & Associates and Maryland Casualty Company to recover unpaid progress payments for steel labor on a government facility construction project. The trial court found that Borrett-Moore agreed to pay J.S. & H. by September 15, 1963 but failed to do so, justifying J.S. & H.'s departure from the job. The Tenth Circuit affirmed, finding no clear error in the trial court's ruling based on

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    Borrett-Moore & Associates and Maryland Casualty Company v. United States of America, For The Use of James P. Harwell, Doing Business As J.S. & H. Construction Company, 367 F.2d 122, 10th Cir. (1966)

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    Scribd Government Docs
    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit regarding a dispute over unpaid labor for a government construction contract. James Harwell, doing business as J.S. & H. Construction Company, brought a Miller Act claim against Borrett-Moore & Associates and Maryland Casualty Company to recover unpaid progress payments for steel labor on a government facility construction project. The trial court found that Borrett-Moore agreed to pay J.S. & H. by September 15, 1963 but failed to do so, justifying J.S. & H.'s departure from the job. The Tenth Circuit affirmed, finding no clear error in the trial court's ruling based on

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    of 3

    367 F.

    2d 122

    BORRETT-MOORE & ASSOCIATES and Maryland


    Casualty Company, Appellants,
    v.
    UNITED STATES of America, For the Use of James P.
    HARWELL,
    doing business as J.S. & H. Construction Company, Appellees.
    No. 8392.

    United States Court of Appeals Tenth Circuit.


    Sept. 20, 1966.

    Michael L. Keleher, Albuquerque, N.M. (W. A. Keleher, T. B. Keleher


    and John B. Tittmann, Albuquerque, N.M., with him on brief), for
    appellants.
    Mary Walters, of Toulouse, Ruud, Gallagher & Walters, Albuquerque,
    N.M. for appellees.
    Before MURRAH, Chief Judge and JONES1 and HICKEY, Circuit
    Judges.
    HICKEY, Circuit Judge.

    James P. Harwell, d/d/a J.S. & H. Construction Company, brought this action
    under the Miller Act, 40 U.S.C. 270a-270d (1952), against Borrett-Moore &
    Associates, a co-partnership composed of George Ross O. Borrett and Sam T.
    Moore, and Maryland Casualty Company, a corporation, to recover the
    reasonable value of labor furnished Borrett-Moore at Los Alamos, New
    Mexico, on a government contract. Borrett-Moore was the prime contractor for
    the construction of an A.E.C. facility and Maryland Casualty was its payment
    bond surety. J.S. & H. agreed to provide the labor for the erection of the steel
    required in the job and was to receive progress payments for each month's
    labor. J.S. & H. submitted claims to Borrett-Moore from time to time, but was
    not paid in full. After some disagreement, a meeting was arranged in July,
    1963, and the court found on conflicting evidence that Borrett-Moore agreed to

    pay J.S. & H. on or before September 15, 1963. Payment was not made and J.S.
    & H. left the job. The trial court found from the evidence presented that J.S. &
    H. was entitled to receive progress payments as billed and that he was justified
    in leaving the job on September 17, 1963.
    2

    Appellant filed a counter-claim seeking to set off and recover against appellee
    the amount they were required to expend to complete the steel work.

    The court dismissed the counter-claim and gave judgment to the appellee for
    the reasonable value of appellee's labor upon the project less the amount that
    had been paid.

    Appellant complains (1) that a substantial breach of the subcontract must be


    shown before appellee can recover; (2) that appellant should have recovered
    against appellee on the counter-claim because the subcontractor or appellee was
    relieved of the job.

    The trial court found against the appellant on both contentions. It found, upon
    conflicting testimony regarding the agreement of July, 1963, that the appellee
    was justified in terminating his employment. The nature of the agreement was
    in dispute, but it is clear that payment was never made. This finding, having
    been made on conflicting evidence and not clearly erroneous, may not be set
    aside on appeal. Fed.R.Civ.P. 52(a), 28 U.S.C.; St. Paul Mercury Indemnity
    Company v. United States, 238 F.2d 917, 922 (10th Cir. 1957); Wunderlich
    Contracting Company v. United States, 240 F.2d 201, 203 (10th Cir. 1957).

    ' The Miller Act * * * is highly remedial in nature. It is entitled to a liberal


    construction and application in order (to) properly effectuate the Congressional
    intent to protect those whose labor and materials go into public projects.'
    'Ostensibly the payment bond is for the protection of 'all persons supplying
    labor and material in the prosecution of the work' and 'every person who has
    furnished labor or material in the prosecution of the work' is given the right to
    sue on such payment bond.' McEvoy Co. v. United States, 322 U.S. 102, 107,
    64 S.Ct. 890, 893, 88 L.Ed. 1163 (1944).

    The court, having found on conflicting evidence that appellee on his own
    volition withdrew his performance and was justified, settles the matter.

    Affirmed.

    Of the Fifth Circuit, sitting by designation

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