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UNITED STATES EX REL. MONAHAN INSULATION CO. v. AC

September 25, 1963

The UNITED STATES of America, to the Use of MONAHAN INSULATION COMPANY, Inc.
v.
ACME MISSILES & CONSTRUCTION CORPORATION, a Delaware corporation, and Continental Casualty Company, an Illinois corporation



The opinion of the court was delivered by: GOURLEY

This is a civil non-jury action under what is commonly known as the Miller Act, 40 U.S.C.A. § 270a et seq.

 The plaintiff is a sub-subcontractor who provided labor and material for the installation and insulation of heating ducts and heating piping in accordance with the plans and specifications provided by the contract between the defendant, Acme Missiles, and the United States of America.

 DISCUSSION

 The following questions are posed:

 1. Does the United States District Court for the Western District of Pennsylvania have jurisdiction of the subject matter of the within suit, and was the within action commenced within the time prescribed to the Miller Act?

 The Miller Act specifically provides that a surety bond shall be issued for the protection of all persons supplying labor and materials, and the prosecution of all work provided for in a contrct with the United States of America for the use of each such person.

 The law further provides that any person who has not been paid in full before the expiration of a period of one year after the day on which the labor or material was done or furnished by said person, shall have the right to institute action on a surety bond for the balance due.

 I conclude that compliance was made to said provisions of law and that the action was instituted within the period of one year after the day on which the last of the labor was done and material furnished by the plaintiff. Under the circumstances, jurisdiction exists in the United States District Court for the Western District of Pennsylvania.

 2. What was the amount of the contract between Monahan Insulation Company, Inc., and Acme Missiles & Construction Corporation, and did Morton I. Fiedler act as an agent of Acme or was there a joint enterprise between Monahan and Fiedler of Acme and agreed to by Acme?

 (a) After the subcontract was entered into between Acme and Fiedler, Fiedler approached Monahan relative to the performance of part of said contract. Considerable discussion existed between said parties as to the cost of the work and materials and, after an extensive evaluation and computation was made by Monahan, the amount agreed between Monahan and Fiedler was $ 5,400.00.

 (b) When Monahan was first approached by Fiedler, he hesitated to deal with him due to the credit and financial status of Fiedler, and it was understood that Monahan would perform the contract if Acme would be responsible to Monahan. A purchase order was issued by Fiedler to Monahan whereby Monahan was to charge to --

 'Fiedler's, Inc. c/o Acme Missiles & Construction Corporation 43 North Village Avenue Rockville Center, New York'

 The conclusion is required that Acme was fully informed and aware of the relationship and approved the actions of Fiedler as its representative or agent. However, if the Court is in error in reaching such conclusion, I find that Fiedler and Monahan entered into a joint enterprise to perform part of the contract previously entered into between Fiedler and Acme, that Acme had full knowledge of the relationship and impliedly approved the performance of said part of the contract.

 A check in the amount of $ 2,900.00 was issued to Fiedler and Monahan which was not endorsed by Fiedler. This confirms the fact that Acme ...


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